Court/Judicial body: Constitutional Court
Date: 11 July 2007 CRC and International
Provisions: General references to the Convention on the Rights of the Child and the Declaration on the Rights of the Child in the context of Italy meeting its obligation to provide guarantees for the protection of the child from sexual exploitation under international law
Domestic provisions: Article 609 of the Criminal Code: where sexual offences are committed against a minor under the age of 14, the guilty party may not invoke ignorance of the age of the injured party in his defence (the Contested Provision) Article 27(1) and (3) of the Constitution: the principle of individual criminal responsibility prohibiting the imposition of responsibility for the actions of others. There needs to be a psychological connection – at least in the form of blame – between the agent and the significant or underlying core of the offence.
Background: This case was referred to the Constitutional Court by a lower court asking that the constitutionality of a criminal law provision concerning the statutory rape of minors under the age of 14 be examined. Under the contested provision, act of sexual intercourse with a minor under the age of 14 constitutes a criminal offence without requiring proof of intent or fault on the accused who performed the act. In the instant case, the accused had been misled by the injured party who had falsely stated that he was older than 14. The referring court asked the Constitutional Court to rule that the provision was contrary to Article 27 of the Italian Constitution in so far as it does not require the prosecution to establish the intention of the accused and is a derogation from the general principle of criminal law governing blame and responsibility which would require a causal link between an act and the intention to commit the act. The state argued that the constitutional interest in guaranteeing special protection to minors outweighed the principle that criminal intent be proven as a necessary prerequisite for criminal responsibility. The government also argued that ensuring more rigorous protection to people who are particularly immature when confronted with the dangers related to unlawful sexual relations is part of Italian legal culture and that the contested provision also prevents the introduction into criminal trials of investigative issues which may cause further harm to the dignity of minors or traumatise them yet further.
Issue and resolution: Sexual abuse of children. Whether strict liability for sexual acts with children under 14 is constitutionally permitted. The Constitutional Court held that the case referred was inadmissible due to inconsistencies and deficiencies contained in the referral order and that the Contested Provision had been adjudicated before and held to be constitutional.
Court reasoning: The Court recognised that, the constitutional principle in question requires that the age of the injured party must be psychologically linked with the accused. In general, the psychological element encapsulates the unlawful status of the offence, marking the distinction between criminal conduct and lawful sexual relations between consenting individuals. However, the pressing requirements to protect minors under the age of 14 from all forms of abuse (which the contested provision aims to further) may justify derogations from the principle of blame. It effectively expresses a specific choice made by Parliament to provide robust protection to minors under the age of 14 as required under the Constitution and under international law. Such decision of Parliament to make this derogation takes particular account of the ease with which the accused may claim true or supposed ignorance or mistake over the age of the minor. Since in many cases the fact that the victim is younger than 14 is not unequivocally reflected in his or her external appearance, this gives rise to the fear that the application of common rules may create areas of impunity considered to be detrimental for an effective safeguarding of the interests of minors in question. Therefore, the Court Concluded that Parliament’s policy decision is entirely rational.
Excerpt citing CRC and other relevant human rights Article 609-sexies of the Criminal Code, contested before the court today, in effect expresses a specific choice made by Parliament: i.e. of giving particularly robust protection – as a derogation from the general principles governing psychological imputation – to a value of uncontested importance, also within the framework of constitutional guarantees ( Article 31(2) of the Constitution) and guarantees provided for under international law (including in particular the Declaration on the Rights of the Child, adopted by United Nations General Assembly resolution of 20 November 1959; the Convention on the Rights of the Child, done in New York on 20 December 1989, and more recently, with specific reference to the fight against the sexual exploitation of children, framework decision 2004/68/JHA of the Council of the European Union of 22 December 2003).
CRIN comments: CRIN believes this decision is consistent with the CRC. Article 19 requires that states take all appropriate measures to protect children from sexual abuse, including legislative measures such as stricter liability and others that would have a deterrent effect.
Citation: Judgment No. 322 of 2007
Link to full judgement: http://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S322_2007_Eng_sito.pdf