Less serious group sexual assault, penalty rigidity at the Council

"It is appropriate and, indeed, a duty to submit to the Court the question of constitutional legitimacy of Article 609-octies of the Criminal Code in the part in which it does not provide that, in cases considered to be minor gravity, the sentence may be reduced by the judge by an amount not exceeding two-thirds". The Juvenile Court of Milan put in black and white, in an order of referral to the Constitutional Court, its doubts about the rigidity that prevents the judge from reducing the penalty in cases of group sexual violence of minor gravity. An issue that has already been addressed in the past by the Constitutional Court, which had branded the questions of constitutionality as manifestly unfounded, defending the greater sanctioning rigour with respect to sexual violence carried out by a single person, due to the particularly serious and traumatic injury to the sphere of self-determination of the sexual freedom of the victim.

However, the referring judge has his own arguments. The case dealt with concerns the criminal trial of a minor, accused of approaching a boy on the bus and inducing him to follow him, under the pretext of performing consensual sexual acts. When they arrived at an abandoned building, where there were two other minors, the lured young man had been robbed of his mobile phone at knifepoint and then groped. The victim had left and returned to the scene with the police. The defendant was charged with robbery and group sexual assault in the less serious form.

The new element - explains the juvenile judge - lies in the increase in penalties, implemented by theRed Code, which, with Law 69/2019, punishes group sexual violence with a range of eight years' imprisonment to fourteen, compared to the previous six and twelve. Too harsh a treatment, in the view of the referring court, given the automatism that prevents the judge from reducing beyond two thirds. In the case examined, the Juvenile Court warned, the victim had given his initial consent to the encounter, had left the building to immediately call for help, had returned there with the police to retrieve his mobile phone, and had found the perpetrators there who had not left. 'He did not require medical attention and it does not appear from the records of the case,' the order reads, 'that he subsequently required medical attention.

For the Court, the severity of the penalty would be contrary to the right toequal treatment and the re-educative function of punishment, because it is excessively vexatious. And the comparison is made with conduct for which it is possible, in less serious cases, to break down the two-thirds 'wall'. A possibility that exists, for instance, for sexual acts, consensual, with subjects ofvery young age or even impuberty, who are unlikely to have, in the immediate future, full awareness of what is happening to them.

The Court observes that, 'in the case of a sexual assault deemed less serious and therefore taking into account the mitigating circumstance provided for in Article 609-bis, paragraph 3, of the Penal Code, the judge, starting from the minimum sentence (six years imprisonment) and applying the maximum reduction, could impose a sentence of two years imprisonment; an identical fact of lesser gravity, but committed by two persons together - the judges write - would be punished with eight years' imprisonment (fourfold penalty). The difference in minimum sentence for an offence not of lesser gravity is two years (six years under Article 609-bis of the Criminal Code; eight years under Article 609-octies of the Criminal Code; this is 33%); at present, the difference in the minimum sentence for an act of lesser gravity is six years (two years ex Article 609-bis of the Penal Code with the maximum reduction for mitigation; however eight years ex Article 609-octies of the Penal Code; this is 300%, almost ten times the increase compared to cases not of lesser gravity)'.