In a sentence on Monday, the Court of Cassation partially accepted the appeal of two men accused of rape, on the basis that their victim had drunk alcohol willingly. They were judged to be guilty of rape and having exploited the woman's weakened state as a result of the alcohol, but the court ruled that the consumption of alcohol did not constitute “aggravating circumstances”.
The assault took place in 2009, after a meal during which the defendants, both in their 50s, and the victim ate and drank alcohol. A few hours after the assault, the woman went to hospital and explained what had happened in a “confused manner”, the judgment noted.
The men were initially acquitted of rape in 2011 by a district court, which judged the woman's account to be unreliable. However, a Turin appeals court in 2017 overturned that judgment on the basis of a medical report, and gave the men a three-year jail sentence for rape with aggravating circumstances, due to the “use of alcoholic substances” in connection with the assault.
Now the Court of Cassation has ordered a retrial, in a sentence that has been widely criticized by politicians and women's rights groups.
The judges at the top court found in their ruling that the men were guilty of rape, rejecting part of their appeal that claimed their victim had consented to sexual acts before the meal. They said that the men had taken advantage of the woman's “condition of physical or mental inferiority” and that the impact of the alcohol rendered any consent invalid.
However, the court said the consumption of alcohol was not an aggravating factor in the case, because under Italian law the alcohol needed either to be “instrumental to sexual violence” to be considered aggravating, or alternatively it must be the defendant who “uses alcohol for the violence, administering it to the victim”.
Voluntary consumption of alcohol, they continued “has an impact, as seen, on the evaluation of whether consent is valid, but not on the presence of aggravating factors”. None of the parties involved have denied that the drinking was voluntary.
In Italy, the case has been widely reported under headlines such as 'If [the victim is] drunk, rape has no aggravating circumstances' (state broadcaster Rai News) and 'Did you choose to drink? Then the rape isn't 'aggravated'' (the far-left Il Manifesto). International media including the Guardian and the Irish Times also covered the verdict.
“The sentence takes us back decades,” said Democratic Party politician Alessia Rotta, while Forza Italia MP Annagrazia Calabria said the ruling left her “bewildered” and called it “a step backwards”.
The Perugia branch of Non Una di Meno, which campaigns against gendered violence, wrote: “Sentences of this kind risk cancelling out years and years of struggles. Just like that, we're back in the past.”
Women's rights campaigners have frequently criticized the way sexual assault cases are handled both by courts and the media, with actor-director Asia Argento saying she chose to leave the country partly over the “victim-blaming” in response to her accusation of rape by Harvey Weinstein.
Previous cases which shocked the country included a 1999 case in which the court ruled an 18-year-old could not have been raped because she was wearing tight jeans, which they argued would not have been possible to forcibly remove. This ruling was overturned in a judgment on a separate case in 2008.
And in a 2006 Court of Cassation ruling, the rape of a 14-year-old by her stepfather was judged to be “of a lesser gravity” because the girl was not a virgin.
However, in the case this week it is not accurate to say the ruling suggests rape is less serious if the victim voluntarily drank alcohol. The guilty verdict for rape remains intact; it is only the application of “aggravating circumstances” that has been challenged.
“This sentence affirms something that actually can't be taken for granted in Italian courts: if a women [who is raped] is drunk, even if she drank freely and wasn't induced or forced to drink, it's rape,” wrote activist Nadia Somma, who works at an anti-violence centre in Calabria, in an article for Il Fatto Quotidiano.
Under Italian law, perpetrators must have used force or compulsion in the form of violence, threats, or abuse of authority for sexual acts to be considered sexual violence. This includes “abusing the physical or psychological inferiority of the person at the time of the act”, as was judged to have happened in this case, but is different from the system in several countries including the UK and Sweden, where all non-consensual sexual acts are classed as rape, regardless of the perpetrator's intention.
The Italian system therefore means the onus is on the prosecution to prove that the victim was unable to stop the assault. In May 2015, a Modena court acquitted three defendants of sexual violence against a 16-year-old who was inebriated at the time, on the grounds that she did not physically resist or call for help, which could have “led to the belief that she was consenting”.
The case has thrown the question of how courts deal with sexual assault into the public eye, with many questioning the initial three-year sentence and others questioning how Italy judges aggravating factors and the role of power dynamics in such cases.
Criminal lawyer Caterina Malavenda, who described this week's verdict as “correct” from a legal standpoint, told the Corriere della Sera: “Now the Court of Appeal [who must now carry out the retrial] will have to reevaluate everything and, in particular, understand who made the victim drink and why: You can drink without realizing if there is someone who fills your glass continually, but why are they doing it? “