The amendment to Article 609-bis and the crime of sexual violence in other countries

Translated by Annachiara Laino

On 19 November, the Chamber of Deputies unanimously approved Bill C. 1693-A, as well as the Boldrini Bill, which aimed to amend Article 609-bis of the Penal Code on sexual violence and free expression of consent. The amendment focused in particular on the expression of consent, which must be “free and current”, as approved by the Justice Commission. This result would allow Italy to align itself with international standards after many years. 

The Istanbul Convention

The Council of Europe Convention on preventing and combating violence against women and domestic violence, known as the Istanbul Convention and signed in 2011, aims to create a regulatory framework for the protection of women, with specific measures also in the area of domestic violence. This Convention is fundamental not only because it establishes, first and foremost in Article 3, that violence against women constitutes a violation of human rights, but also because it is the first legally binding international instrument. In particular, Article 36, which calls on States to take action on penalties for sexual violence, emphasises a fundamental criterion: consent. According to Article 36, paragraph 2, consent must be expressed voluntarily and as a result of free will established in the context of the circumstances, and consent makes sexual conduct lacking this element a criminal offence.

The Italian Penal Code

Article 609-bis of the Italian Penal Code was not in line with the provisions of the Council of Europe: it was therefore necessary, not only for reasons related to the implementation of supranational regulations but also for reasons of protection and safety, to implement a measure that integrated consent into the definition of the offense or at least identified it as a criminalising criterion for the conduct. With the amendment, Article 609-bis, paragraph 1, now reads as follows:

“Anyone who engages in sexual acts without free and current consent shall be punished with imprisonment for a term of between six and twelve years”.

Although the Chamber’s approval is a great result, we are still awaiting the Senate’s vote. If it approves the amendment, a text with a significant educational impact will come into force and help to establish a culture based on consent. 

Other countries

Last month, France also approved a Bill introducing a definition of sexual violence based on consent into the Penal Code. Before France, 16 other European countries had already introduced consent as a defining element of sexual violence into their legal systems, including Belgium, Croatia, Cyprus, the Czech Republic, Denmark, Finland, Germany, Greece, Ireland, Luxembourg, Malta, The Netherlands, Poland, Slovenia, Spain and Sweden. Other non-EU countries had also followed suit such as Iceland, Norway, Switzerland and the United Kingdom.

Outside the European context, the current status quo of legislation on sexual violence in the Middle East is vague: none of the 22 states of the Arab League has currently criminalised marital sexual violence in their Penal Codes, and although there have been steps forward such as the repeal of Article 308 in the Jordanian Penal Code (which allowed the perpetrator to avoid conviction by marrying the victim), it is still clear that certain legal systems link the concept of honour and reputation to sexual violence, neglecting any form of protection for the victim.

Law and society

The relationship between law, culture and society is based on the mutual influence of these elements and this is why the scope of a “simple” amendment can lead to radical social changes: a culture based on consent places the victim at the centre: it protects them and lays the foundations for future generations to ensure that such a phenomenon does not exist in the near future.