Cassation

Ministry compensates for sexual abuse at school, it is a foreseeable event

The fostering of children for educational purposes is a particularly insidious ground for abuse. Schools must take preventive measures

by Patrizia Maciocchi

6 May 2025

Aggiungi Il Sole 24 Ore
ai preferiti su Google

4' min read

4' min read

"The situations offostering of minors foreducational purposes are a particularly insidious ground forsexual abuse". Sexual harassmentat school cannot therefore be considered, according to national and supranational statistics and standards, an unforeseeable event. The Ministry of Education must therefore indemnify, jointly and severally with the person directly responsible, the material and biological damage and the injury to constitutional rights, such as the right to study.

The Supreme Court upheld the appeal by the families of minors who had been abused during school hours and during an excursion by their teacher and rejected the Ministry's appeal against the quantification of damages, from which the provisional compensation had been deducted. The Supreme Court recalls, in fact, the duty to "compensate for the teacher's criminal conduct that, although contrary to the institutional aims pursued by the school, is not objectively improbable and, therefore, does not constitute an unforeseeable anomaly such as to exempt the public administration".

The judges emphasised the existence of the 'needed link of occasionality' between the public servant's criminal actions and his role as a teacher, given that it was precisely in the school environment and even during lessons that the sexual abuse had taken place. For the Court of Cassation actions that the school had an obligation toprevent or at least torepress, given the frequency (from 2003 to 2006).

The Criminal Code

Proving the risk of abuse by persons to whom minors are entrusted are the provisions of the Penal Code, which intervenes with specific aggravating circumstances. Emblematic is Article 609-quater of the Criminal Code, which identifies ad hoc treatment in the case of a relationship of trust or authority, established with the child for reasons of care, education, instruction, supervision or custody.

Supranational Standards

In the supranational sphere, the "Explanatory report" of the text of the "Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse" is explanatory. Significant is the "Lanzarote Convention", signed on 25 October 2007 and ratified by Italy with law no. 172/2012. A rule that requires the signatory states to provide for a criminal sanction for participating "in sexual activities with a child, abusing a recognised position of trust, authority or influence over the child". And it clearly identifies the school context as an environment in which the relationship of trust deserves special attention and a related increased protection of minors.

Relationships of trust and authority

It also includes abuse in the context of a recognised position of trust, authority or influence over the child. Which may refer, for example, to situations where a relationship of trust has been established with the child, where the relationship takes place in the context of a professional activity (workers in institutions, teachers, doctors, etc.), or to other types of relationships, such as those where there is physical, economic, religious or social balanced power. "Relationships in which minors must be protected, even when they have already reached the legal age for sexual relations and the person involved does not usecoercion, force or threats. These are situations in which the persons involved abuse a relationship of trust with the child derived from a natural authority - the judges write - social or religious, which allows them to control, punish or reward the child emotionally, economically or even physically. Such relationships of trust normally exist between the child and his or her parents, family members, foster or adoptive parents, but may also exist in relation to persons who perform parental or caregiving functions; educate the child or provide emotional, pastoral, therapeutic or medical assistance; or employ or have financial control over the child or otherwise exercise control over the child."

It follows, therefore, from national and supranational legislation that the possibility that a relationship of care, supervision and education may abnormally evolve into sexual abuse. And it is by no means an unforeseeable anomaly.

Statistical evidence

Under the statistical profile then - the judges of legitimacy then warned - it is not uncommon for morbid attentions and acts of a sexual nature to be directed at minors by persons entrusted with their care, situations more favourable to sexual predators.

"Contrary to what the Avvocatura dello Stato maintains," the Supreme Court concludes, "the criminal conduct perpetrated to the detriment of the present appellants, although contrary to the institutional purposes pursued by the public body, is not objectively improbable and, therefore, does not constitute an unforeseeable anomaly. The conduct 'is not completely dissociated from the functions carried out and devoid of any connection with those functions - such as to exempt the public administration from the duty to adopt all measures aimed at preventing and avoiding the commission of such offences during the provision of school services and, in any event, from the assumption of the risk arising from the commission of crimes in the course thereof'.

In the case examined, 'even leaving aside a prevention that was evidently lacking (and indeed not even attached)', the sentence reads, 'the repetition of the criminal conduct in the school environment and during lessons makes it clear that the ministerial bodies in charge of control should have been activated well before the most serious episodes that occurred during the school trip (which, however, falls within the scope of institutional activities)'.