Aiding and abetting prostitution: same penalties as exploitation
Legitimacy doubts about sentences of two to six years rejected: the dignity of the vulnerable person must be protected. No need for ad hoc mitigation
Key points
Legitimate punishment of imprisonment of two to six years for aiding and abetting prostitution, the same ceiling as for the more serious exploitation. Nor should an ad hoc mitigating circumstance be introduced for the minor offence. The Constitutional Court, with sentence number 34, declared as unfounded the questions of constitutional legitimacy raised by the Tribunal of Bologna, which raised doubts as to whether the punitive treatment provided by law for the crime of aiding and abetting prostitution was in conflict with the Charter.
Same penalty as the most serious exploitation
The referring judge, stating that the conduct alleged against the defendants in the main proceedings consisted in favouring the activity of prostitution essentially by accompanying certain women to the place where it was practised, albeit with the intention of protecting them, had found a violation of Articles 3 and 27, third paragraph, of the Constitution, considering that the sentence of imprisonment "from two to six years", indicated in Article 3, first paragraph, number 8) of Law no. 75 of 1958, was excessive. A rule that, moreover, establishes the same penalty also for the case, considered more serious, of exploitation of prostitution. The request to the Constitutional Court was therefore to replace - only for the crime of aiding and abetting - the censured sanctioning treatment with alighter penalty, identified as imprisonment "up to six years" or, alternatively, to introduce an attenuating circumstance for cases of minor importance.
The protection of the dignity of the person
The judge of law noted the position of the jurisprudence of legitimacy, which has found in the conduct in question an attitude concretely detrimental to the goods protected by the law through the incrimination of aiding and abetting prostitution, instrumental to the objective of protecting the fundamental rights and the dignity of the person who, in a condition of vulnerability, falls into the vortex of prostitution.
The Court emphasised that conduct that objectively facilitates the perpetration of sexual exchange for payment falls within the framework, designed by the legislature, of combating crime, making it discretionary to establish whether or not a given minimum penalty is appropriate to the identified social disvalue, even when comparing the cases of aiding and abetting and the exploitation of prostitution. The latitude of the penalty indicated by the law, is in any case such that it allows the judge to modulate and inflict in the case examined a sanction proportionate to the gravity of the violation committed.
No ad hoc mitigation
Excluded, according to the Constitutional Court, is also the need to introduce, for the offence of aiding and abetting prostitution, an attenuating circumstance for the minor offence. The legal system, in fact, already makes available to the criminal judge other tools, left to his free assessment, which allow him to mitigate the punitive treatment, such as the application of general extenuating circumstances, and also to consider that, in relation to the specific circumstances, according to the projection 'in concreto' of the principle of offensiveness, the conduct in question proves to be devoid of any damaging potentiality.
