Sexual violence, or the harm caused by rules that are also intended to send a message

The fierce controversy surrounding the case of the 13-year-old girl sexually assaulted by a Bangladeshi shop assistant – and, above all, the way in which the news was reported by the media – is the most glaring example of the catastrophic damage caused by criminal laws characterised by the misguided pretence of (also) serving ideological purposes and conveying a political and cultural ‘message’. The 1996 reform of the offence of sexual violence represented, in many respects, a historic turning point in our country’s civil progress, above all for having finally classified such offences under crimes against the person rather than crimes against public morality. However, the systematic and semantic choice to classify both ‘rape’ and the ‘violent acts of lust’ – which had been in force until then – under the single, generic term ‘sexual violence’ instead improperly subjected the law to ideological and symbolic demands.

When rules are written in the same spirit as a slogan, they only cause trouble. What was meant was: any sexual act carried out without consent is sexual assault, and any distinction – even a purely semantic one – would take us back to the intolerable cultural dregs of the fascist penal code. However, whatever label one might wish to give to a criminal offence, it seems irrefutable from each of our own human experiences that not all behaviour falling under that offence is perceived as equally reprehensible. This is so obvious that the 1996 reform itself, under the guise of that obtuse ideological imposition, nevertheless recognised and regulated this inescapable truth, providing for a reduction in the sentence of no less than ‘up to two-thirds’ in cases of sexual violence of ‘minor severity’.

A mess, because the same provision states: do not dare to call anything other than sexual violence even those behaviours – however reprehensible – which case law had hitherto described as ‘intrusive touching, forced kissing, unauthorised groping’ etc.; yet it then leaves it entirely to the judge’s discretion to apply precisely to these acts (to which others, if not?) a reduction in sentence (“up to two-thirds”) that is actually greater than that provided for by the Fascist code for so-called “acts of violent lust” compared with “rape” (one-third). Hypocrisy and populist stupidity in their purest form. As if that were not enough, it is worth noting that, inevitably, last year the Constitutional Court – having acknowledged that this formidable reduction in sentence may also apply to aggravated sexual offences (e.g. if committed – would you believe it – against minors), extended its applicability – once again left to the discretionary judgement of the court in each specific case – even to gang rape, which is, of all offences, the one most severely punished. It may therefore happen – in accordance with the law and as is entirely to be expected – that even ‘less serious’ cases of gang rape may occur, with a sentence reduced by up to two-thirds. In short, this represents a clear example of the irredeemable obtuseness of political correctness: in the name of semantic orthodoxy, it was deemed preferable to entrust truly vast scopes of discretion to the judge, rather than providing more rigorous – and, above all, binding – statutory definitions for the judge himself. Had these elementary concepts – which I have merely summarised here – been properly examined in the case of the Bangladeshi shop assistant, the right to criticise the Turin investigating magistrate’s decision to impose only a requirement to sign in, rather than imprisonment as requested by the public prosecutor (a matter now under review by the appeal judges), would have remained entirely intact and legitimate; but at the very least we would have been spared the shameful recourse to the systematic, cynical and vulgar manipulation of the truth, which has stirred up emotions, enraged public opinion, and sown hatred and venom.

The order issued by the investigating magistrate in Turin unequivocally describes conduct consisting – to use the old legal terminology here – of ‘unauthorised groping’ of the young girl. Therefore, ‘sexual assault on a minor’ – and the perpetrator will certainly pay the price for this heinous offence – but certainly not “the rape of a little girl”, as I have heard shouted or written in bold letters not by the usual keyboard warriors, but first and foremost by editors of – shall we say – established and reputable daily newspapers, by leading opinion writers and by political figures at the very highest levels, including institutional ones. As I have sought to explain here, the primary responsibility certainly lies with the ill-fated legislative choice to deny semantic distinctions to behaviours whose varying degrees of seriousness are subsequently recognised by the law itself, ‘hidden’ by the provision of a mitigating circumstance that is, in fact, utterly destructive. However, the decision by those who, given their responsibilities and roles, did not hesitate to fail in their duty to inform public opinion with even a minimum respect for the truth of the facts, has written one of the many humiliating chapters in the political history we are now forced to live through, in these such difficult times.