Sex in Prison: 2024-25, year of the turning point

Translated by Irene Cecchi

On January 31, 2024, with sentence n. 10, the Constitutional Court recognized, with some exceptions, the right of most prisoners to have intimate visits with their spouse or cohabiting partner without being under the direct supervision of prison officers.

However, a year later, the ruling remains unenforced, and the right is still denied. Despite numerous requests, no intimate visits have been allowed in any Italian prison. Yet, the first two months of 2025 appear to mark a historic turning point: with the January 29 ruling, Judge Fabio Gianfilippi of Spoleto—who had previously brought the case to the Constitutional Court, leading to ruling 10/2024—upheld the complaint of a prisoner in the Terni prison, who claimed his right to intimacy was violated when the prison administration denied his request for an intimate visit.

Following this, in early February, additional rulings in favor of inmates were issued by Surveillance Judge Elena Bianchi in Reggio Emilia and others in Pescara and Verona.

It is important to note that the Constitutional Court's ruling is an "additive" ruling, meaning it declares a legal provision unconstitutional using the formula of “in the part that does not foresee a specific right” and so it adds a clarification to it in order not to clash with the Constitution. The ruling 10/2024 recognizes the right to intimacy, stating that Article 18 of the Prison Administration Act (L.O.P. in Italian), which governs inmate visits, correspondence, and information, is unconstitutional:

"in the part where it does not provide that an inmate may be allowed […] to conduct visits with their spouse, civil union partner or cohabiting partner without direct supervision by prison staff, when, considering the inmate’s behavior, there are no security risks, threats to order and discipline, or, in the case of pretrial detainees, judicial restrictions."

An explanation of the ruling is crucial to understand the importance of the surveillance judges' recent decisions. The ruling does not require any legislative intervention; it is directly applicable. As Ilaria Giugni noted in her commentary on Sistema Penale, the ruling also outlines the criteria that prison administrations and surveillance judges must follow in granting intimate visits and provides guidelines for lawmakers to create a specific legal framework in the future.

The key principles that prison authorities and surveillance judges must adhere to are:

• Intimate visits must be long enough to allow full expression of affection and the right must be granted periodically, as long as the conditions remain.
• Specially equipped residential units must be established within prisons, designed to replicate a domestic environment as much as possible. The privacy of the meeting space must be ensured, shielding it from both prison staff and other inmates.
• Visits are allowed only for legally recognized partners, and authorities must verify the stability of the relationship, proof of cohabitation, and the absence of judicial restrictions on contact.

The Court also determines that inmates under the 41-bis prison regime, those under special surveillance, and those convicted of obstructing crimes are excluded from intimate visits..

Another major step forward in securing the right to intimacy in prison was taken by the First Section of the Court of Cassation, which, through ruling number 8 of 2025, introduced the possibility to appeal to the Article 35-bis of the Prison Administration Act (known as the "judicial complaint") for violations of this right. This provides inmates with a legal remedy against prison administrations that unlawfully deny intimate visits, despite meeting the conditions set forth in ruling 10/2024.

This sentence was approved after a case at the Asti prison, where an inmate was denied an intimate visit based on a vague justification from prison authorities, citing structural and economic deficiencies. The Turin surveillance judge dismissed the inmate’s appeal, arguing—contrary to the Constitutional Court's decision—that intimacy is not a right but merely an expectation. With ruling 8/2025, the Court of Cassation overturned this decision and ordered the judge to reconsider the case in accordance with Article 35-bis.

This ruling set a precedent for the recent wave of decisions in early 2025. Among them, Judge Fabio Gianfilippi's ruling in Spoleto stands out as a landmark decision: he ordered prison authorities to allow intimate visits for an inmate in Terni’s High Security circuit, who was not subject to 41-bis (strict solitary confinement) or special surveillance (14-bis).

Judge Gianfilippi's ruling highlighted two critical flaws in the prison administration’s refusal: firstly, a full year had passed since the Constitutional Court’s decision, yet no steps had been taken to adapt prison facilities so authorities could not justify their refusal based on the alleged lack of resources (as the direction did). On the other hand, the denial lacked specific reasoning related to the inmate in question, it ignored his exemplary behavior, his praised work in the prison kitchen in December 2024, and his documented regular contact with his partner; since there were no legitimate “security concerns,” the refusal was unjustified.

Judicial intervention is filling a critical gap in legal protections—a gap far more severe than it may seem. A quick look at other countries shows that even in Russia, where prison conditions are described as "horrific" and incarceration rates are extremely high (with 630,155 inmates as of 2017, according to Antigone), intimate visits are allowed, even if not often —four times a year, according to an interview with Ljudmila Al’pern by Ristretti. In general, as of 2018, 31 out of 47 Council of Europe countries allowed some form of intimate visits: in Germany and Sweden, there are small apartments where inmates can live with their families for a few days, while in the Netherlands, visits take place in designated rooms or even directly in prison cells.

In front of the inertia of the legislator, the judiciary took action to ensure that prisoners can maintain their sexuality—an essential component of human dignity that has long been trampled upon in Italian prisons.

Mondo Internazionale APS - Riproduzione Riservata ® 2025