Military Sexual Abuse: Ordinary or Military Competence? Here's what you risk ...

(To Marco Valerio Verni)
13/03/17

In recent days, the news regarding the opening of the criminal trial, at the ordinary court of La Spezia, against two soldiers who, according to the accusatory hypothesis, would have been guilty of committing sexual violence to the detriment of some of their , while they were in service, at the time of the facts, on the frigate Grecale.

Beyond the case referred to, on which, in honor of the constitutionally guaranteed principle of the presumption of not guilty until the sentence has become final, it is only possible to await the outcome of the related process, not being that of the episode referred to, the only one who has (had) news within the Armed Forces, it may be useful, however, to analyze in a general way what constitutes this type of crime, when it is configurable, what are the penalties and who should on it judges when, in fact, to be protagonists (in the double role of victim and author) are the military, within military places.

The regulatory provision: the art. 609 bis of the penal code. What we risk

The crime in question is foreseen and punished by art. 609 bis of the penal code and, following the reform introduced by the 66 number of 15 February 1996 (before which, moreover, sexual violence was "spun off" into two distinct criminal offenses: acts of violent lust and carnal violence), falls within currently between crimes against sexual freedom (which in turn are included in the broader category of crimes against individual freedom), understood today - finally - as a real right of the human person, available only from the owner and no longer connected to a moralistic evaluation.

From the wording of the provision referred to, according to which "Anyone who violently or threatens or through the abuse of authority forces someone to perform or suffer sexual acts is punished with imprisonment from five to ten years.

At the same sentence those who induce someone to perform or undergo sexual acts are subjected:

1) abusing the physical or psychological inferiority conditions of the injured person at the time of the act;

2) misleading the offended person for having the guilty replaced to another person.

In cases of minor gravity, the sentence has decreased to an extent not exceeding two thirds ",

it is clear that:

  1. it is a common crime, being the conduct underlying it to be performed by "anyone";

  2. they may, on the other hand, be victims of the aforesaid (conduct), both men and women, with the consequence that any homosexual conduct falls within the sphere of application of the crime in question;

  3. it is a crime with a constrained form, because the crime consists necessarily in the fulfillment of sexual acts in contrast with the will of the passive subject (in fact, where, on the contrary, dissent would fail, it would be, therefore, less the so-called typicality of the done).

As for the punishable conduct contemplated by the law, they are of two kinds: on the one hand, the case of sexual violence for constrainton the other hand that for induction.

Regarding the first, it can be perpetrated through violence (to be understood as the exercise of physical strength to counter the victim's resistance), threat (which is implemented through the express warning that in the event of opposition to violence damage will be caused to the victim or to other persons or things) or abuse of authority (placed in being through the coercion of the will of the subject using his position of superiority or pre-eminence).

Regarding the second, instead, it (induction) derives from the abuse of the victim's physical or psychological inferiority or from the deception about his identity.

For its configurability, it is certainly necessary - as for every type of crime - to investigate case by case, because if on one hand it is almost indubitable that, in this case, can fall all those acts addressed to erogenous zones of the body of those who are made object, on the other, "la relevance of all those acts that, as not directly addressed to areas clearly definable as erogene, can be addressed to the passive subject, even with completely different purposes, such as kisses or hugs"must be evaluated in the overall context, taking into account the relationships between the persons involved and of any determination of their sexuality (as evidenced in the sentence issued by the Third Section of the Court of Cassation, 41469 / 2016 number, of 13.04.16, deposited the 4.0.2016) : from this point of view, this type of crime can include various behaviors that, excluding the most striking and objective ones, can go from the pat on the ass in the crowd, to rubbing on the victim's "b" side, to the kiss on the neck.

Aggravating circumstances: art. 609-ter of the Penal Code

Article 609-ter of the Italian Penal Code provides for the circumstances in which the penalty in general for sexual violence is aggravated: in fact, imprisonment is expected from six to twelve years if the facts are committed against a person who has not completed fourteen years; with the use of weapons or alcohol, narcotics or drugs or other instruments or substances seriously detrimental to the injured person's health; as a person who is misrepresented or who simulates the quality of a public official or a public service officer; on a person subject to limitations of personal freedom; against a person who has not turned sixteen and whose perpetrator is the ascendant, the adoptive parent, the guardian; inside or in the immediate vicinity of an educational institution or training attended by the injured person; towards pregnant women; against a person whose perpetrator is a spouse, also separated or divorced, or someone who is or has been linked by an affective relationship, even without cohabitation; if the crime is committed by a person who is part of a criminal association and in order to facilitate its activity; if the offense is committed with serious violence or if the child derives from the fact, due to the recurrence of the conduct, a serious injury.

The penalty is further aggravated (from seven to fourteen years) if the fact is committed against a person who has not turned ten.

Procedural institutions

The jurisdiction for the crime in question, given the high penalty (from five to ten years), is the collegiate tribunal, whose decision is, of course, preceded by the screening of the preliminary hearing.

It can be filed on complaint by the injured party, who may present it, by way of derogation from the normal deadline (three months), within six months of the fact, with the further exception, compared to the ordinary discipline of that institution ( lawsuit), which, once filed, will become irrevocable; where however the perpetrator of violence is a public official (or the person in charge of a public service), the procedure is ex officio.

Save the provision referred to in the third paragraph, the arrest is always mandatory, while the detention is allowed.

If sexual violence occurs in the military: who is judging?

Without prejudice to the distinction between "military crime" and "common crime", explicitly codified in our legal system (in the Military Criminal Code of Peace, theart. 37, in fact, states that «any violation of the military criminal law is a military offense»), And what has been affirmed by the most authoritative doctrine, according to which, in order for a crime to qualify as such (ie, military), two elements must be involved (that is: a formal element - alias the express provision by a military criminal law - and a substantial element - constituted by the offense of a military interest), in addition to the subjective requirement of belonging to the Armed Forces, and placed that, currently, sexual violence is provided by the common criminal code only, therefore, it is easy to say that, even in the case in which the case may manifest (or may be manifested) between the military, within a military structure (including a ship or an aircraft), jurisdictional cognition will always belong to the ordinary judge, having regard, of course, to the locus commissi delicti (ie, to the place where violence has been - presumably - occurred).

Constitution of civil party and legal aid

The victim of sexual violence, given the peculiarity and particular odiousness of the crime in question, can, notwithstanding the income limits (as foreseen by the art. 76 paragraph 4-ter of the DPR 115 / 2002), access to legal aid, the same as that (victim) of the crime of pedophilia, child pornography, trafficking in human beings, as well, from 2013 (in accordance with the Council of Europe signed in Istanbul the 11 May 2011), of family mistreatment, of persecutory acts and practices of mutilation of female genital organs.

This in order to facilitate the legal assistance in his favor, also in view of a possible (due, it would be said) constitution of a civil party in the criminal trial that, for the case in question, is also admitted to the spouse of it (victim, alias offended person), as he is injured, in turn, in his right to the intangibility of the conjugal relationship and of honor and family dignity (Court III, 21.07.2010, No. 28732).

(photo: US Navy / US Air Force)