Sexual violence, stop secondary victimisation by the judiciary

The judge cannot consider the version of the woman reporting asexual assault to be untrue, even to the extent of convicting her of slander, because he considers her behaviour to be non-logical, based on her personal convictions. In particular, the defendant was accused of having denouncedafter a long time the sexual violence, according to her, suffered by a colleague at work, and of not having resigned in order to seekanother occupation, passively suffering the conduct then denounced. In addition, there was a total absence of witnesses and evidence of the harassment of the woman, and a request by the public prosecutor, accepted by the Gip, for the crime of sexual violence to be dismissed.

For the Court of Appeal, this was enough to convict the defendant of slander. The decision was overturned by the Supreme Court, which chastised the judges for basing their judgement on "presumptive arguments, based on mere subjective convictions - reads the judgement - about the abstractly dutiful conduct of the victim of a reported sexual assault in a work context". Arguments - underlines the Supreme Court - that have already been censured by the Edu  Court in theJ.L. v. Italy judgment of 27 May 2021, in which the Strasbourg judges urged the Italian judicial authority not to use reasons that "expose women to secondary legitimisation by using guilt-inducing and moralistic words that could discourage the victim's trust in justice".

For the Court of Cassation, there is the risk of a further paradoxical effect in attributing responsibility for slander to those who have not managed to prove the justification of their complaint, as occurred in the case examined. The result, in fact, is 'not only to discourage all forms of cooperation with the judicial authorities by those who have witnessed criminal activities, but also and (above all) to discourage precisely the victims of gender-based violence, domestic violence or against women or minors or persons with disabilities - the judges write - considered intrinsically vulnerable by the legal system'. In the opinion of the judges of legitimacy, this means that their rights are no longer protected because the crimes they suffer take place in closed contexts and without witnesses, because of the possible consequences, precisely against them, of the failure to ascertain the crimes suffered for which there is no proof other than their word.