“Negative” sexual autonomy, sexual offences and role of consent: a comparative analysis of English and Italian law

ABSTRACT:

The aim of the seminar is to compare the English “pure consensual” model of regulation of sexual offences and the Italian legal framework.

The English approach is markedly different from the approach chosen by the Italian Legislator with the Reform of 1996, where the main crime in the matter, i.e. “sexual violence” (art. 609-bis), was structured according to a ‘coercive’ model in the so-called “sexual violence by coercion” (art. 609-bis, comma 1). Under that provision, the victim is required to be “forced” to perform or suffer a sexual act. The crime asks for “constraint” of the victim and specifies its modalities, which are: threat, violence, or abuse of authority.

However, I will argue that, despite the reading of the offence, the jurisprudential interpretation of art. 609-bis has gone beyond the ‘coercive boundaries’ specifics and the Supreme Court clearly states that consent must persist throughout the entire sexual relationship and that, therefore, the lack of consent is an element of the offence.

The discussion will conclude by considering the need for reform according to the principle of legality, in view of the differences between the text of the law and its interpretation by the Supreme Court.