Who wrote to the director Claudio Cerasa

To the director – “Never was an era like this so favorable to daffodils and exhibitionists. Where are the saints? We will have to be satisfied with dying in the odor of advertising” (Ennio Flaiano).
Michael the Great

I reply with another Flaiano, who would probably have used these words to describe Italy’s current season: “I belong to the silent minority. They are of those few who have nothing more to say and wait. What? Does everything clear up? Age has brought me the certainty that nothing can be clarified: in this country that I love, there simply is no truth. Countries much smaller and more important than ours have their own truth, we have infinite versions of it. The causes? I leave it to the historians, sociologists, psychoanalysts and round tables to show us the causes, I suffer the effects. And with me a few others: because almost everyone has a solution to offer us: their truth, that is, something that does not conflict with their interests. At the round table it will also be necessary to invite an art historian to tell him what influence the Baroque may have had on our psychology. In fact, in Italy the shortest line between two points is the arabesque. We live in a network of arabesques”.

To the director – Raise your hand who, in recent days, has not commented on the sentence on the “live groping” against the journalist Greta Beccaglia. Between those who thought that a sentence of one and a half years was a mistake and those who saw in the sentence perhaps severe punishment but all in all fair the case has divided public opinion, jurists included. But how are things really? What is meant, according to the Penal Code, by sexual violence and why in such cases it is not possible to speak of harassment? Is the penalty applied really disproportionate? And why was the suspect dismissed in other cases that might appear similar? One of the first topics of discussion is that relating to the correctness of the classification of the conduct within the art. 609-bis of the Penal Code, i.e. the article that sanctions the crime of sexual violence, instead of within the art. 660 which sanctions harassment. In reality, the decision is absolutely in line with the provisions of our Criminal Code, as interpreted by jurisprudence, which, in a constant manner, tends to rotate the difference between violence and sexual harassment around the existence or otherwise of physical contacts with a relationship between perpetrator and victim. The crime we are discussing is a very serious crime, not only for the penalty provided for by the Penal Code – from 6 to 12 years of imprisonment – but also for the mark it leaves on the convict (and this too is an issue that should not be underestimated in these cases).

Well, precisely because of the variety of behaviors that can fall within the notion of sexual violence, especially if interpreted in such a broad way – no one will ever be able to deny that a groping is indisputably less serious than a complete sexual relationship – the law has attributed to judge the tools necessary to adapt the sentence to the specific case, even possibly going below the 6 years envisaged as a minimum. The penal code establishes, in fact, that in particular cases defined as “less serious”, the sentence can be reduced by the judge in an absolutely significant wayi.e. “up to two-thirds”.

A hypothesis envisaged precisely for conduct other than classic sexual violence and, therefore, also for groping and touching, with reference to which it would be illogical to provide for a minimum sentence of 6 years’ imprisonment (which would obviously be exorbitant). And it is no coincidence that in almost all the sentences in which the perpetrator of groping was convicted of sexual violence, the judge decided to resort precisely to the attenuated hypothesis of “less seriousness”. However one thinks of it, one must however renounce the temptation of necessarily wanting to see something innovative or revolutionary in the story involving the journalist Greta Beccaglia. It is – at least according to what the jurisprudence says – an ordinary case of sexual violence considered (rightly) “of lesser gravity” in which the judge, far from having been influenced by the resulting media event, did nothing but resort to norms already applied many other times (even to cases in which violence does not had been committed on live TV).

Guido Stampanoni Bassi
Director of the Journal of Criminal Law

Re-reading Flaiano to describe Italy’s current season