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Everything seemed ready for the final approval of the reform of Article 609-bis of the Italian Penal Code—the article that defines what constitutes rape in Italy—on a day of high symbolic value: November 25, the International Day for the Elimination of Violence against Women.
Less than a week earlier, on November 19, it was with a striking unanimous vote, by both the governing majority and the far-right opposition, that the Chamber of Deputies had approved the text introducing a new paragraph on consent into Article 609-bis. The paragraph stipulates that “Anyone who performs, causes someone to perform, or causes someone to suffer sexual acts without the free and current consent of that person shall be punished with imprisonment from six to 12 years.”
The following paragraph reproduced the definition that formerly constituted the legal notion of rape—a formulation long contested by the feminist movement because of the severe re-victimization it caused in courtrooms. That definition, which is still in force today, states, “The same penalty applies to anyone who forces another person to perform or suffer sexual acts through violence, threat, or abuse of authority, or induces another person to perform or suffer sexual acts by exploiting conditions of physical or psychological inferiority or particular vulnerability at the time of the act, or by deceiving the victim by impersonation.”
The new draft concluded with provisions for lesser offences, establishing that “the penalty may be reduced by up to two-thirds.”
Rape: a crime against morality until 1996
In 1979, RAI (the first public television channel in Italy) broadcast the documentary Processo per stupro (Trial for Rape). Footage filmed in court shows how, during the trial of the rapists of an eighteen-year-old girl, the defense lawyers tried in every way possible to undermine the credibility of the plaintiff, portraying her as someone who “was asking for it,” suggesting she sought financial gain—since her rapist was her employer, together with three other men—and insisting she “hadn’t defended herself enough,” even proposing that she could have bitten the penis of the man who forced her to perform oral sex.
Since then, there have been many court rulings that minimize rape, and they are regularly condemned by women’s groups. One such ruling is the infamous “jeans ruling” of the Court of Cassation in 1998. That verdict overturned a rape conviction because the victim’s jeans were so tight that she would have had to remove them herself. Still cited today as a prime example of courtroom sexism, it triggered the furious protest of female MPs who appeared in Parliament wearing jeans and T-shirts.
Until 1996, rape was still considered a crime against morality. It took constant mobilization and signature campaigns by the women’s movement and the feminist and women’s press—particularly the widely read magazine Grazia—to establish rape as a crime against the person.
Yet in court it is still the woman who must prove the violence she endured and fight the prejudices that too often shape the perspective of judges—if she’d been out alone at night, had accepted a ride, was wearing a miniskirt, had been drinking, had previously been in a relationship with the man, if she knew him, if he had been courting her (even unwantedly). All these could make her be seen as sharing responsibility for the violence she endured. The man could even not be indicted or receive a light sentence, if not acquitted altogether.
This is why consent is fundamental. Consent must be freely expressed, unequivocal, and revocable. A woman may begin kissing a man but not wish to have full sexual intercourse. She may agree to have sex but refuse certain sexual practices.
In court it is still the woman who must prove the violence she endured and fight the prejudices that too often shape the perspective of judges
Challenge to amendments made to the text by far-right League party
The trap was sprung in the Senate, on November 25, ironically enough.
In the northern region of Veneto, the Lega (League) party candidate for regional president won, while in the other two voting regions of Campania and Puglia, the candidates put forward by government leader party Fratelli d’Italia (the Brothers of Italy) lost. Buoyed by their electoral victory, League secretary Matteo Salvini, Minister of Transport and deputy prime minister in Giorgia Meloni’s government, reneged on the bipartisan agreement that had been made between Meloni herself and Democratic Party secretary Elly Schlein. It was this agreement that had enabled unanimous approval in the Chamber.
As reported by ANSA news agency, Salvini argued that the wording “leaves too much room for individual interpretation” and could open the door to “personal vendettas by women and men who, without any abuse, could exploit a vague law to their advantage, clogging the courts.”
He was immediately supported by Justice Minister Carlo Nordio, and also particularly by the Minister for Family, Birth Rate and Equal Opportunities, Eugenia Roccella, who stated, “With the consent law, the risk is a reversal of the burden of proof. That is the concern.”
In the Italian justice system, which upholds the presumption of innocence, a person is considered innocent until convicted. So it is always up to the accuser to prove the alleged facts. According to Roccella, however, the accused man would now risk having to prove that he obtained consent.
Now, the fact is that everything has been postponed until February, if not later.
Prime Minister Meloni remained silent in the face of this blatant sabotage. It is widely known that she tends to minimize contact with the press and refuses questions even during the rare press conferences she holds, often when she is abroad.
DP secretary Elly Schlein, who on November 12 obtained the agreement with Meloni that led to unanimous approval in the Chamber—the first and only such vote of the legislative term—said she had spoken with the Prime Minister “to ask her to respect the agreement,” without specifying the outcome. “It’s a serious thing,” she stressed, “for women to potentially be made to pay for the post-electoral settling of scores within the majority.”
“It’s a serious thing for women to potentially be made to pay for the post-electoral settling of scores within the majority.”
Femicide becomes a standalone crime in the Italian Penal Code
This controversy overshadowed another important step forward in criminal law: on that same date, November 25, the Chamber of Deputies also approved the law introducing femicide as a standalone crime in the Italian Penal Code. It had already passed the Senate.
The new offence, which could serve as a model for other countries, states, “Anyone who causes the death of a woman when the act is committed as an expression of hatred, discrimination, domination, control, or possession because she is a woman, or in relation to a woman’s refusal to establish or maintain an emotional relationship, or as an act that limits her individual freedoms, shall be punished with life imprisonment.”
The approval was hailed as “a historic turning point” by feminist judge Paola Di Nicola Travaglini, author of numerous works dismantling the prejudices that taint case law involving crimes against women. She had been repeatedly heard by the Justice Committees of both houses of Parliament and contributed to the adopted formulation.
In response, on the afternoon of November 25, women returned to the streets in many cities, following the national march organized by Non Una Di Meno (Not One Less) that had taken place in Rome on Saturday, November 22.
The position of the feminist movement was clearly expressed by an activist speaking through a megaphone at the Milan protest. She highlighted another major battle fought by the transfeminist movement, anti-violence centers, teachers, and LGBTQIA+ associations: the push for sexual-emotional education in schools, which the right-wing government continues to oppose.
As reported by la Repubblica, the activists of Non Una Di Meno asserted that “violence is structural and runs through courtrooms as well. They want to introduce consent into the definition of sexual violence, but consent is learned at school through affective-education courses—the very courses for which the government demands parental consent.”
“They have introduced the crime of femicide, but femicide is a cultural and power-based crime. The number of femicides will not drop simply because the crime exists. Investing in education is too expensive, so prison becomes the answer. But prison alone does not prevent, does not educate. Dear Meloni government, thank you, but when criminal law intervenes, it is already too late. The culture of violence must be countered with prevention—through education to consent. The government protects us in death but does not recognize our rights in life,” they rallied.
