The new law on sexual violence, approved unanimously in the House on 19 November, is currently being discussed in the Senate and there is a plan to explicitly introduce the concept of the “recognizability” of consent. The proposal is causing discussion among those who deal with gender violence, a topic that causes great social alarm.
We asked Gian Luigi Gatta, Professor of Criminal Law at the University of Milan and President of the Italian Association of Criminal Law Professors (AIPDP), to help us understand what the problem is.
Professor Gatta, the frequent debates and the sensitivity of the topic suggest that it is particularly difficult to write a good law on the subject of sexual violence. Is this really the case or is it just a question of backwardness as some say or political will as others say?
«It’s difficult, I confirm. The political will is clear and shared in Parliament: to update the regulation of sexual violence to the changed social perception, which attributes central importance to consent, to the will, which must always be present and which does not fail only in the face of real acts of physical abuse, i.e. violence properly understood. The difficulty lies in translating this political will into a law that is effectively applicable and at the same time complies with constitutional principles in criminal matters. Among these, the precision of the text and the right to an effective defense by those accused of such a serious act, which often takes place in intimate or otherwise secluded contexts, with consequent difficulties in proof. There is an issue of quality and technique of legislation: it is not necessary to approve just any law, just to be able to say that it has been approved. We need to make a good law and to do so we need to study, study and evaluate the experiences of foreign states close to us, such as Spain, France and Germany. I think and hope that is exactly what the Senate is doing. It is said that hasty cats make kittens blind. It also applies to the legislator.”
What is not working in the existing law and which there was a unanimous need to modify?
«Since 2011, an important international convention, the Istanbul Convention of the Council of Europe, also ratified by Italy, provides that the contracting states criminalize the fact of carrying out sexual acts without the consent of others, regardless, that is, of actual violence, as in the case of sudden conduct that takes the victim by surprise (for example, on a bus or in an elevator) or in the case in which someone takes advantage of the victim’s inability to express consent, because he is under the effect of alcohol or drugs. Today in our courts the scope of the rule is extended to these cases, but it is done by going beyond the limits of the law, which is prohibited in criminal matters. Hence the need to update the law.”
According to associations that deal with women’s rights and protection, the concept of “recognizable consent” that is being introduced to overcome the stalemate of the law in the Senate would be a step backwards in terms of the protection of victims. You have studied the issue from a technical point of view, do you share this concern?
«We are waiting to see the text of the law, on which the Senate is working. That said, since it is a malicious, i.e. voluntary, crime, it is completely normal to require that the perpetrator represented himself and wanted to perform a sexual act without the consent of others. Therefore the lack of consensus, or the existence of dissent, must at least be recognisable. German law expressly says so. The French one, approved a few months ago, says that consent must be “evaluated in light of the circumstances and cannot be deduced exclusively from the victim’s silence or lack of reaction”. Invoking the protection of victims is right, but let’s not forget, it is also right to invoke the defense guarantees of the accused. It’s about balancing the two things: here, once again, is the difficulty of writing criminal laws, which requires balance and thoughtfulness.”
In his detailed speech on Penal systemyou had proposed to valorize a “recognizable dissent” instead, what difference is there?
«It is the solution adopted in Germany. The recipient of unwelcome sexual attention is required to express dissent, rather than requiring anyone who wishes to engage in sexual intercourse to confirm the presence of full and authentic consent, waiting for a positive manifestation before proceeding. However, in Germany, cases of inability to express dissent (for example, due to the effect of alcohol or drugs) are also taken into account, punishing even those who exploit this impossibility. In the opinion of many scholars of the subject, it is a very interesting model that Parliament could adopt.”
The sociological field often asks laws to say things that current culture perceives as urgent, the legal field is concerned with the real applicability in the courtrooms where technical facts and principles clash. Do you see any risks and misunderstandings on this front in the debate we are talking about?
«We talk more and more often about law and criminal justice, because it is a matter perceived as close, which reflects choices of value and judgments of negative value shared in society. But we must not forget that it is a technical subject. It’s a bit like football, said a great German criminal lawyer: we all think we are experts and we dare to propose formations and schemes, as if we were technical commissioners of the national team or Serie A coaches. In reality, the technical translation of a political will passes through a series of technical-legal steps which are not quibbles, but bulwarks of the civilization of law. Hence the risk of misunderstandings. The most obvious is to believe that worrying about the defendant’s guarantees, when faced with accusations against which it may be difficult to defend oneself, means ignoring the protection needs of the victims. It’s not like that.”
