This article is based on an academic, as well as statistical, analysis of all the Italian Supreme Court's 2015 sentences concerning the offence of “Sexual Violence” (art. 609-bis c.p.) in which the previous convictions have been confirmed (being rejected the defendants' recourses). However, the research is mainly focused on the 110 decisions (out of a total of 340 ) in which both the exact penalty inflicted and the details of the criminal conduct concretely committed are clearly reported. The 'traditional' investigation on the Court's interpretation of the elements of the offence has shown no particular innovation as far as the central notions of “sexual act” and “coercitive violence” are concerned. Some developments, instead, have been observed regarding the concept of “psychological inferiority”, that has again been broadened, disconnecting it from a medical-psychiatrical rigid parameters (with the risk, indeed, of infringing the principle of legality): all this, of course, to provide vulnerable subjects with a strenghtened protection. Anyhow, the most relevant results of the analisys have been undoubtedly those related to the exercise of the judicial discretion concerning sentencing, As far as sentencing is concerned, the Italian Supreme Court has a very limited power, given that the power of deciding the concrete duration of convicts' penalty is in the Tribunals and Appellate Courts' hands. The investigation has shown endemic discrepancies concerning penalties inflicted for similar conducts by different courts, as well as too lenient penalties, especially in cases of rape and pedophilia. In conclusion, there is a clear violation of a principle – as for now not yet deepened by scholars - whom we could denominate “sentencing legality”.

La violenza sessuale (art. 609-bis c.p.) nella giurisprudenza della Suprema Corte del 2015. Analisi di 110 sentenze di inammissibilità e rigetto tra orientamenti esegetici di legittimità e opzioni sanzionatorie di merito / Francesco Macri. - In: DIRITTO PENALE CONTEMPORANEO. - ISSN 2240-7618. - ELETTRONICO. - (2016), pp. 162-185.

La violenza sessuale (art. 609-bis c.p.) nella giurisprudenza della Suprema Corte del 2015. Analisi di 110 sentenze di inammissibilità e rigetto tra orientamenti esegetici di legittimità e opzioni sanzionatorie di merito

Francesco Macri
2016

Abstract

This article is based on an academic, as well as statistical, analysis of all the Italian Supreme Court's 2015 sentences concerning the offence of “Sexual Violence” (art. 609-bis c.p.) in which the previous convictions have been confirmed (being rejected the defendants' recourses). However, the research is mainly focused on the 110 decisions (out of a total of 340 ) in which both the exact penalty inflicted and the details of the criminal conduct concretely committed are clearly reported. The 'traditional' investigation on the Court's interpretation of the elements of the offence has shown no particular innovation as far as the central notions of “sexual act” and “coercitive violence” are concerned. Some developments, instead, have been observed regarding the concept of “psychological inferiority”, that has again been broadened, disconnecting it from a medical-psychiatrical rigid parameters (with the risk, indeed, of infringing the principle of legality): all this, of course, to provide vulnerable subjects with a strenghtened protection. Anyhow, the most relevant results of the analisys have been undoubtedly those related to the exercise of the judicial discretion concerning sentencing, As far as sentencing is concerned, the Italian Supreme Court has a very limited power, given that the power of deciding the concrete duration of convicts' penalty is in the Tribunals and Appellate Courts' hands. The investigation has shown endemic discrepancies concerning penalties inflicted for similar conducts by different courts, as well as too lenient penalties, especially in cases of rape and pedophilia. In conclusion, there is a clear violation of a principle – as for now not yet deepened by scholars - whom we could denominate “sentencing legality”.
162
185
Francesco Macri
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/2158/1281451
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