The aggravating circumstance of child-assisted violence does not apply to stalking

The aggravating circumstance of assault by the minor does not apply to stalking. The Cassio Court of Cassation, with sentence 40301, accepted, limited to this point, the appeal against the decision of the Court of Appeal that had determined an increase in sentence by applying - in a case of persecutory acts against the ex-wife carried out in the presence of the 9-year-old son - the increase in sentence provided for by Article 61, first paragraph, no. 11 quinquies. A stretch according to the defence lawyers. The Supreme Court confirms. The Supreme Court, in fact, recalls that the specific aggravating circumstance is provided for mistreatment in the family and sexual violence while, based on a literal interpretation of the law, it must be excluded that the legislator intended to extend to minors, who witness acts of stalking, the protection that would instead be ensured to them in the case of witnessing other crimes. And, in particular, of non-culpable crimes against life and limb and personal freedom, among which - the ermines specify - the crime of persecutory acts, provided for by Article 612-bis of the Criminal Code, which is an offence against moral freedom, does not fall.

The Supreme Court itself has 'perplexities' about the distinction in the application of protection. The judges make it clear that it could easily be objected that moral freedom is only one aspect of personal freedom, which is increasingly oriented towards the concept of freedom of self-determination and, therefore, also of moral freedom. A conclusion supported by the reading of Article 13 of the Constitution, dedicated to personal freedom, which prohibits all physical and moral violence against persons whose freedom is restricted, thus uniting, under the same cone of protection granted to the individual, the two concepts of freedom. And again, valuing the evolution of case law on the subject of witnessing violence in the crime of ill-treatment against family members and cohabitants or of so-called perceived violence, one could always observe - the judges continue - how the crime of stalking can concretely determine 'detrimental effects also towards minors who, although without being direct victims of persecutory acts, witness episodes of persecution'. Considerations that, however, at present - explains the Supreme Court - are not useful to change the jurisprudence of legitimacy that moves on the most restrictive path based on the literal interpretation of the rule.