Sexual violence, reaction time does not count

Thedelay in thereaction of the victim, i.e. in the manifestation of dissent, is irrelevant for the purposes of the configuration of sexual violence. And this is because the 'surprise' in the face of the abuse may be such that it overcomes the contrary will, making it impossible for the victim to defend himself. These are the reasons with which the Cassazione ordered, on 11 February, an encore appeal trial for a former trade unionist, accused of abusing a stewardess and who had been acquitted because, the judges said, she in "30 seconds" could have objected.

The Supreme Court upheld the appeal by the Milan Public Prosecutor, Angelo Renna, against the decision of the Milan Court of Appeal, which had made the existence of sexual violence dependent on the victim's reaction time. A reasoning that had led the territorial court, on 24 June, to confirmthe acquittal for the man from the charge of sexual violence against the young woman. The judges of legitimacy endorsed the Public Prosecutor's argument that it cannot be established that a sexual act, which lasted 20 or, at most, 30 seconds, falls outside the scope of the accusation of abuse.

A clear distance, in line with the jurisprudence of legitimacy, from the conclusion of the Milan Court of Appeal, according to which it had emerged from the trial documents that the defendant had not used any form of violence. The second instance judges had admitted that it had been a matter of abrupt harassment 'such as to place the offended person in a situation of absolute impossibility to escape the conduct'. However, the court of merit had valued the time at the victim's disposal '20-30 seconds', which would also have allowed her to escape.

The second instance judges had confirmed an acquittal already decided by the court in the first instance. Verdicts that had not taken into account the victim's dissent. As for the defendant's perception of this, according to the most recent guideline 'it is not relevant that no dissent has been perceived, but it is necessary that there is a reasonable certainty that there is full consent, initial and permanent'.