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CRIMINAL CODE

TITLE XII

CRIMES AGAINST THE PERSON

[Under provisions of art. 36 of the Law of 5 Fe/puary 1992, nr. 104, regarding assistance to the handicapped persons, the penalties for not intentional crimes referred to in present title, must be increased by a third to the half if the offended person is handicapped]

PART I

CRIMES AGAINST LIFE AND PERSONAL SAFETY

575 Homicide

Anybody who causes the death of a person is liable to imprisonment for a term not less than twenty one years.

576 Aggravating circumstances. Life imprisonment

Life imprisonment is applied if the action referred to in the previous article has been committed:

1) when one of the circumstances indicated in p. 2) of art. 61occurs;

2) against an ascendant or descendant (c.p.540;), when one of the circumstances indicated in p. 1) and 4) of art. 61 occurs or when poison or other insidious means have been applied or in case of premeditation;

3) by a fugitive escaping from the arrest, the capture or the imprisonment or in order to procure means of subsistence during the furtiveness;

4) by associate committing a crime (c.p.416, 416 bis), escaping from the arrest, from the capture or the imprisonment;

5) during an action commissioned in order to commit one of the crimes mentioned in art. 519, 520 and 521.

The fugitive is, to the effects of the criminal law, anybody who is in the conditions listed in p. 6 of art. 61.

577 Other aggravating circumstances. Life imprisonment

The penalty of life imprisonment is applied if the action mentioned in art. 575 is committed:

1) against an ascendant or descendant (c.p.540);

2) with means of poisonous substances, that is as well with other insidious means;

3) with premeditation;

4) when occur any of the circumstances given in p. 1) and 4) of art. 61.

The crime is punishable by an imprisonment for a term from twenty four to thirty years, if the act is committed against the spouse, the /pother or sister (c.p.540), adoptive father or mother, or the adopted son, or against anyone similar in the direct line.

578 Infanticide in conditions of material and moral abandonment

A mother who causes the death of her own new-born child immediately after the delivery, or of the foetus during the delivery, when the fact is determined by conditions of material and moral abandonment connected to the delivery, is punished with an imprisonment for a term from four to twelve years.

Those who participate in the action mentioned in the first paragraph are liable to an imprisonment for a term not less than twenty one years.

However, if they have acted only to help the mother, the penalty can be diminished by a third to two thirds.

The aggravating circumstances established in art. 61 c.p. do not apply

582 Personal injury

Anybody who causes to anybody a personal injury, from which bodily or a mental injury derives, is liable to an imprisonment for a term from three months to three years (c.p.583, 585).

If the injury has not exceeded twenty days and none of the aggravating circumstances mentioned in art.583 and 585 occur, with the exception of those indicated in p. l) and in the latter part of art. 577, the guilty party is punishable by a legal action (c.p.120-126) of the plaintiff.

583 Aggravating circumstances

A personal injury is considered as an act of gross indecency and is liable to an imprisonment of a term from three to seven years:

1) if from the fact derives an injury that puts in danger the life of the victim, as well as an injury or a disability to attend to ordinary occupations for a time of more than forty days;

2) if the fact produces a permanent weakness of a sense or of an organ;

3) cancelled.

A personal injury is the act of gross indecency, and is liable to an imprisonment of a term from six to twelve years, if from the fact derives:

1) a certain or probable incurable injury;

2) loss of a sense;

3) loss of a limb, or a mutilation that renders the limb unusable, as well as a loss of use of an organ or the ability to procreate, as well as a permanent and serious disability of speech;

4) deformation, that is a permanent scar on the face.

5) cancelled.

584 Manslaughter

Anybody whose actions are intended to commit one of the crimes mentioned in art. 581 and 582, causes the death of a person, is liable to an imprisonment for a term from ten to eighteen years (c.p.43, 585, 586).

585 Aggravating circumstances

In the cases mentioned in art. 582, 583 and 584, the penalty is increased by a third to a half, if occur any of the aggravating circumstances mentioned in art. 576; and it is increased by a third, if occur any of the aggravating circumstances mentioned in art. 577, as well as when the action with the use of weapons or corrosive substances is committed.

As regards to criminal law, are considered weapons:

1) those to shoot and all others, aimed at injuring people;

2) all instruments used to injure, of which the carrying is prohibited by law per se, that is without a justified reason.

Exploding materials and asphyxiating or blinding gases are considered to be weapons.

586 Death or injuries as a consequence of another crime

When from an action considered as a premeditated crime (c.p.43) derives a non- intentional consequence of the guilty party, that is the death or the injury of a person, the dispositions of art. 83 are applied, but the penalties established in the art. 589 and 590 are increased (c.p.64, 289 bis) (571 n.2, 57 n.22, 584, 591-3, 593 n.3, 630 n.2).

587 Homicide and personal injury because of honour (abolished)

588 Fight

Who participates in a fight is punished with a fine of Liras 600.000.

If in a fight anybody is murdered, or suffers personal injury (c.p.582), the penalty, for the single fact of the participation in a fight, is an imprisonment for a term from three months to five years. The same penalty is liable if the death, or the personal injury, happens immediately after the fight and as a result of it.

589 Intentional homicide

Anybody who causes by negligence (c.p.43) the death of a person, is liable to an imprisonment of a term from six months to five years.

If the act is committed in violation of provisions of street circulation or those for the prevention of accidents at work the guilty party is liable to an imprisonment of a term from one to five years.

In the case of death of several persons, that is the death of one or more persons and the injuries of one or more persons (84), the penalty which is applied is that which would have to be inflicted for the most serious of the violations committed, multiplied by three, but the penalty cannot exceed twelve years.

PART II

CRIMES AGAINST HONOUR

594 Insult

Anybody who offends the honour or the dignity of a person in her/his presence is guilty of an offence and liable to imprisonment for a term not exceeding six months or is punishable of a summary fine not exceeding 1million Liras (c.p.341-344).

To the same penalty is liable anybody who commits the offence by means of telegraphic or telephone communication, or in writing or designs, designated directed at the plaintiff.

The penalty is an imprisonment for a term not exceeding one year or summary fine not exceeding 2 million Liras, if the offence consists in the commitment of the said action.

The penalties increase (c.p.64) when the offence is committed in the presence of more than one person (c.p.596-599).

595 Defamation

Anybody who according to the cases mentioned in the previous article, whilst communicating with more than one person, offends the reputation of the other person, is liable to imprisonment for a term not exceeding a year or is punishable by a summary fine not exceeding 2 million Liras.

If the offence consists of attribution of the determined fact, the penalty is imprisonment for a term not exceeding two years, or punishable on summary conviction not exceeding 4 million Liras.*

If the offence is committed through the press (c.p.57-58 bis) or through whichever other advertising media, that is by public action, the penalty is imprisonment for a term from six months to three years or by a summary fine not less than 1 million Liras (c.p.596-599).*

If the offence is committed to a political body, administrative or judicial (c.p.342), or to one of its representatives, or to one of the Authorities body, the penalties increase. (c.p.64).

See law 8/02/1948 n.47 art 13

PART III

OFFENCES AGAINST PERSONAL LIBERTY

Section II (Jurisprudence)

609 bis Sexual Violence

Any person who by violence or threat or by means of abuse of authority, forces anybody to commit or to endure sexual actions is liable to imprisonment for a term from five to ten years.

To the same punishment is liable any person who induces anybody to commit or to endure sexual actions:

1) abusing the conditions of physical or psychical disability of the victim at the moment of the fact;

2) deceiving the victim in order to replace the guilty party by another person.

In the cases of lesser gravity the penalty is reduced to two thirds.

Article added from art. 3, L. 15 Fe/puary 1996, n. 66

As reported in art. 16 of the same law, modified by art. 15, L. 3 August 1998, n. 269, therefore it has been decided: “1. The guilty of offences whereabouts in articles 600-bis, under paragraph, 609-bis, 609-ter, 609-quater and 609-octies of the criminal code, is subordinated, in forms of an assessment, to examination of locations of sexually transmissible pathologies, in case the modalities of the offence can be a risk of transmission of the same pathologies ".

Sentence relative to the violence inflicted to the girl who wore jeans

SEXUAL VIOLENCE - EXAMINATION OF THE EVIDENCES - DEFECT OF MOTIVATION - CASE IN QUESTION

(Cassation - Section III Penitentiary sent. n. 1636/99 - G President .S. Tridico - Lecturer A.Rizzo)

DEVELOPMENT OF THE TRIAL

On 12.7.1992 Pagliuca Rosa, then aged eighteen, reported to the Police Headquarters of Potenza that the previous day, around 12,30, she had been victim of sexual violence by Carmine Cristiano, her driving instructor. The accused, as he had done other times, had picked her up at her address, in order to carry out the practical part of the driving lesson. But, with the excuse of having to pick up another girl also interested in driving lessons, had lead her outside the residential center and stopped the motor of the vehicle in a lane, then he threw her to the ground and, after he slipped off one leg of her jeans, he raped her. Having committed sexual intercourse, he drove her home and threatened her not to reveal to others about what happened.

The parents, seeing the girl upset, had asked explanations but she preferred not to tell them about what had had happened. The same day, after her return from the lesson of theory at the driving school, she informed her parents of the assault she had suffered.

Cristiano, detained the same day of the denunciation, gave a different version of the facts.

He admitted he had had sexual intercourse with the plaintiff Pagliuca, at time and place reported by her, but he specified that the girl had been consenting.

At the Court of Potenza began a criminal procedure against Cristiano for the offences of sexual violence, private violence, rape as sexual harassment, personal injury, obscene acts in a public place and personal violence, with a sentence on 29.2.1996, condemning the accused being guilty of the crime of obscene actions in a public place, while it released him from the other offences.

As a result of an appeal of the P.M. and of the accused, the Court of Appeals of Potenza, in a sentence on 19.3.1998, declared Cristiano guilty of all offences reproached to him and condemned him to imprisonment for a term of 2 years and 10 months.

Against such sentence Cristiano appealed by cassation and has deducted the motivation defect stating that the Court of Appeals had asserted his guilt with reasoning not coherent with the trial-like outcomes.

REASONS FOR THE DECISION

The Court considers that the appealed sentence should be annulled because of lack of adequate and convincing argumentation. It is sure that the accused is charged with accusations formulated by Pagliuca. But taken into account the protests of innocence of the accused, who has stated that the plaintiff gave her consent to the sexual act, the appropriate Court should have proceed to a rigorous analysis in order to confirm the reliability of the accusatory declarations made by Pagliuca, whilst instead it has asserted guilt of the accused by assessing circumstances of the fact that are in compliance with the version of the facts presented by Cristiano and diminishing or omitting to exam other circumstances that hardly correspond with the denounced sexual violence.

The sentence asserts that the declarations made by Pagliuca are reliable since she had not any reason to make a slanderous accusation against Cristiano.

Such consideration cannot be accepted when it is considered that the girl could have falsely accused Cristiano to have raped her, in order to justify to her parents the sexual intercourse that she had with a person much older than her and moreover married, the intercourse that she did not feel she could hide because she was preoccupied by the possible consequences of the sexual relationship.

Moreover such a hypothesis does not appear improbable in the light of the behaviour of Pagliuca after the facts had happened.

She did not tell her parents what had happened as soon as she returned home, although they asked what happened as she was visibly upset, but only in the evening, after she has assisted to the theory lesson at the driving school.

The Court of Appeals justifies such a delay considering that Pagliuca presumably was ashamed or felt guilty.

But such reasoning is not convincing. In fact it is not clear what shame or sense of guilt Pagliuca could feel, if effectively she was a victim of a sexual harassment, given the gravity of such a fact, moreover committed by her driving instructor, and in whose car she returned in order to carry out the scheduled driving practice.

Similarly at fault is the sentence where it is asserted that Pagliuca was really a victim of the reported sexual violence since it is sure that during the intercourse she had her jeans only partly removed, while if she had given her consent to the sexual relationship she would have removed completely the trousers that she wore.

Such a remark cannot be shared because it would have been really strange if in a plain daylight (the fact happened around 12-12,30pm), in a zone that though isolated was not barred from the transit of people, Pagliuca had undressed herself completely to consent to the intercourse.

It must be here taken into account common knowledge that it is nearly impossible to take jeans off a person even partially without his/her effective collaboration, since it is an operation already difficult for the one who wears them.

Also other points of the sentence show a lack of convincing motivation.

On the body of Pagliuca and Cristiano there were not found any signs of fight between the two or in any way of vigorous resistance of the girl to her aggressor.

The Court of Appeals regarding this, limited itself to assert that for the recognition of the crime of sexual violence it is not necessary that the author of the fact subjects the victim to acts of violence and that however, in the case under examination, Pagliuca did not resist fearing for her life.

But with regard to this it is to be observed, that it is instinctive above all for a young person, to resist with all her strength anyone who wants to rape her and that it is illogical to assert that a girl can suffer without resistance a rape which is a gross assault on a person, because she fears to suffer other possible and perhaps more serious offences to the own physical safety.

The contested sentence, finally, does not explain how, considering the suffered sexual violence, Pagliuca did not try to escape as soon as Cristiano stopped the car and manifested his intentions, therefore not giving a reasonable explanation of behaviour of the plaintiff who, after the sexual relationship, drove the car back.

In the sentence it is specified that Pagliuca wanted to come back home immediately.

But the Court of Appeals omitted to consider that it is most peculiar that a girl, after having suffered sexual violence, finds herself in a psychical state that let her drive a car being seated next to the rapist, most of all if, as in the case under examination, being inexpert at driving, must have driven the car following the advice and the instructions of someone who moments before had raped her.

It proves that the appealed sentence shows a deficient and illogical motivation and therefore deserves the rejection with return to the Court of Appeals of Naples.

FOR THESE REASONS

it rejects the appealed sentence with return to the Court of Appeals of Naples.

609 ter Aggravating Circumstances

A penalty of imprisonment for a term from six to twelve years is liable if the facts mentioned in art. 609 bis have been committed:

1) in respect of a person under fourteen years old;

2) with use of weapons or narcotic, alcohol or other instruments or substances seriously harmful to the health of the victim;

3) from a deceitful person or who pretends to be a public official or person in charge of public service;

4) on a person however subjected to limitations of the personal freedom;

5) in respect of a person who is under sixteen years old to whom the guilty is an ascendant, parent, adoptive parent or guardian.

The penalty is an imprisonment for a term from seven to fourteen years if the fact is committed in respect of a person who is under ten years old.

Article added from art. 4, L. 15 Fe/puary 1996, p. 66 See previous article 609

609quater Sexual acts with a minor

Is liable to punishment mentioned in article 609 bis anybody, who in view of items mentioned in the said article, commits sexual actions in respect of a person who at the moment of the fact:

1) is under fourteen years old;

2) is under the age of sixteen years old, when the guilty party is an ascendant, parent, adoptive parent, guardian, or another person who for reasons of care, of education, of instruction, of vigilance or guardianship, to whom the minor is entrusted or that has lives with the minor.

The minor is not punishable when, outside hypotheses mentioned in art.609 bis, he commits sexual acts in respect of a minor who is under thirteen years old, if the difference of age between the subjects does not exceed three years.

In the cases of lesser offences the penalty is diminished by two thirds.

Is liable to punishment under article 609 ter, second paragraph, if the plaintiff is under ten years old.

Article added from, L. 15 Fe/puary 1996, p. 66

609 octies Sexual violence of a group

The sexual violence of a group consists of the participation of several people, to commit actions of sexual violence mentioned in art.609 bis.

Everybody who commits actions of sexual violence in a group is punished with an imprisonment for a term from six to twelve years.

The penalty is increased if any of the aggravating circumstances mentioned in art. 609 ter. occurs.

The penalty is reduced for the participant whose act had minimal importance in the preparation or the execution of the crime. The penalty is also reduced for whom has committed the crime when the conditions under points 3) and 4) under first paragraph and under the third paragraph of art.112 occur.

PART III

SECTION III

Crimes against moral freedom

610 Personal Violence

Anybody who with violence or threat forces others to do, to tolerate or to omit anything is liable to an imprisonment for a term not exceeding four years.

The penalty is increased (c.p.64) if occur conditions under art. 339.

611 Violence or threat in order to force to commit a crime

Anybody who uses violence or threat in order to force or to convince others to commit a fact considered as a crime is liable to imprisonment for a term not exceeding five years (c.p.462, 543).

The penalty is increased (64) if occur the conditions foreseen by art. 339.

612 Threat

Anybody who threatens others with unjust damage is liable to legal action by the victim (c.p.120-126), with a fine not exceeding 100.000 Liras.

If the threat is serious, or it is made in one of the ways mentioned in art. 339, the guilty is liable to an imprisonment for a term not exceeding a year and ex officio.

613 State of incapacity caused by violence

Anybody who by means of hypnotic suggestion or when awake, or giving alcoholic or narcotic substances, or by whichever other means, puts a person , without her/his consent, in a state of incapacity to understand or have the will, is liable to an imprisonment for a term not exceeding one year (c.p.690, 691, 728).

The consent given by the persons listed in the last paragraph of art. 579 does not exclude punishment.

The penalty is an imprisonment for a term not exceeding five years when:

1) the guilty party has acted with the aim to make someone commit a crime;

2) the person rendered incapacitated commits, in such state, an action considered by the law as a crime (c.p.86, 111).

SECTION IV

Crimes against the inviolability of domicile

614 Violation of domicile

Anyone who /peaks into a dwelling, or in another building or structure or in places of private ownership of any part, against the express or tacit consent of who has the right to exclude him/her, that is who /peaks unlawfully and with deceit, is punished by an imprisonment for a term not exceeding three years (14 Cost.) .

To the same penalty is liable anybody who squats in the said places against expressed consent of who has the right to exclude him, that is who squats unlawfully or with deceit.

The crime is punishable by legal action of the plaintiff (c.p.120-126).

The penalty is an imprisonment for a term from one to five years, and ex officio, if the fact is committed with violence to objects (392-2), or to persons, that is if the guilty party is evidently armed.