italian version

Giovanni De Sio Cesari

www.giovannidesio.it

The Chamber of Deputies, with a unanimous vote — something extremely rare — has approved an amendment to Article 609-bis of the Penal Code, which regulates sexual violence, according to which it is not defined only by coercion, abuse of authority, or incapacity, but also when there is no free and current consent.
“Current” means that it must be contemporaneous with the sexual act and therefore can be withdrawn even a moment before the act takes place.
In theory it could also be applied to men, but in practice it means that if a woman does not give explicit consent at the moment of sex, it is rape — a crime punishable by 6 to 12 years in prison; it does not matter if she gave consent earlier.
Although the parliamentary vote was unanimous, a broad discussion has opened in public opinion about whether this norm is reasonable or not so much so that right-wing parties, in order to gain consensus, have called for a review of the law to more clearly indicate its limits.

This has nothing to do with right or left politics; opinions are cross-cutting, as the vote itself shows. But there are always those who try to exploit any issue for propaganda purposes.

For some, the law would be more of an ideological statement of principle and would have no practical effect in legal terms. The difficulty of proving that the woman did not give explicit consent is even greater than proving violence — for which medical reports may exist (and even they are not certain) — therefore this law would not provide greater protection to raped women.

The Problem of Evidence
In reality, no one doubts that rape is a serious crime, but the problem is the evidence: how can one prove that rape occurred or that consent was freely given? One cannot simply believe what the alleged victim says, because a woman could blackmail a man by claiming he raped her for money, for revenge, or for any other reason, leading to a trial with an entirely uncertain outcome.
A distinction that seems essential to us, and which the law does not make, is the context of the rape.
There are two very different cases: if a woman is with her husband, with her family, etc., and a gang of thugs assaults and rapes her, there is no doubt. But if a woman is with a man in a secluded situation, it is generally impossible to prove whether there was consent or not.
One might think that this overturns the principle of criminal law that one is convicted only on the basis of objective evidence, since evidence of rape in a secluded couple is almost never possible except in particular cases.
In fact, however, when evaluating the circumstances, the judge decides whether to believe the woman or the man. But based on what? Personal impressions? Because objective evidence is impossible? If we applied in dubio pro reo, we would have no convictions for rape — yet convictions do exist.
With the new rule, these uncertainties seem to increase even further.
In the end the judge will decide based on personal convictions. One must hope to find the “right” judge.

In fact, many raped women consider it more convenient to stay silent to avoid becoming suspects themselves, as their credibility would be evaluated.
Everyone jokes about the idea that a woman must explicitly declare her consent: so people talk about filmed statements or documents signed before a notary, and so on — completely absurd things (seen only in The Big Bang Theory) — which would not be useful anyway, since the woman can always say she changed her mind at the last moment.
But then one could also say that the written consent was extorted. If one manages to force a woman to have sex (but is it really possible for a single man?), it is even easier to force a signature.
I do not know the Grillo case well, but as far as I understand, the girls went to the home of boys they did not know, presumably not to discuss philosophy but to have sex. Then they said they changed their mind and didn’t want to. Certainly, they had every right to do so — but how can it be proven?
Yet Grillo and the others were sentenced to 6 years, after a 6-year trial, and their lives were ruined.

In theory, even within marriage a woman can say she was raped. So instead of asking for a divorce, a wife could have her husband sentenced to 6 to 12 years?
Of course this is absurd: everything is left to the judge’s common sense, but this is not a guarantee.

Consent
Regarding consent, I would like to make a reflection. We do not communicate only with words but also with our behavior. For example, one can wear a bikini at the beach, but at school it becomes a provocation.
People speak of consent expressed verbally, but as I noted, we also communicate through body language, especially in a sexual context: if a man touches a woman’s breast and she says nothing, the nonverbal communication is that she consents. If he removes her underwear and she does not resist, the communication is that she agrees to have sex.
It is unclear why a woman must give explicit verbal consent for sex, something women almost never do: feminine modesty also exists.
In fact, in sexual relations, if the woman does not oppose — strongly and decisively — we take for granted that she agrees.
Laws inspired by feminism treat the sexual act as if it were simple, “like drinking a glass of water” (as some from the ’68 generation said), and ignore the complex and difficult-to-control mechanisms driven by the strongest instinct in nature: reproduction.
At a certain point neither the man nor the woman can control themselves anymore.
But what does consent mean? A woman touched in the right places, in the right way, may no longer be able to refuse: it is known that the greatest trauma for some raped women is that they sometimes experience greater arousal than with the man they love and feel guilty, like a “whore.”
In love, as poets once said, “those who flee sometimes want to be pursued,” and “no” is sometimes said to mean “yes.”

In theory rape can also be applied to men, who could be forced at gunpoint — unlikely, but more realistically could be blackmailed: “either we have sex or I’ll fire you,” an entrepreneur could say to her employee. I don’t think anyone has ever been convicted for such events.
But beyond that, there is also the woman’s playful seduction.
It is not easy for a man to refuse the seduction of a woman even if he does not want to, perhaps out of loyalty to his partner.
So is this comparable to the rape of a woman? The law does not consider it.

In the past the blame was always placed on the woman, as she was expected not to put herself in situations in which she could be raped, but that was a different world in which separation between men and women was strict, omnipresent, and mothers were responsible for ensuring it was not violated.
Moreover, virginity was an essential requirement for brides, and female marital fidelity was an absolutely non-negotiable principle, regardless of what the husband did or was.
Today there is co-education of the sexes, shared work environments. Above all, sex is no longer limited to married life (aside from prostitution). Premarital sex, cohabiting couples, and also — though not for all women — casual sex with strangers outside any emotional relationship are generally accepted today.
In this situation, how can one distinguish, in a secluded couple, whether consent was present or not?
Today efforts are made to protect women, but in reality it is impossible to obtain proof of violence in a secluded couple.
I see no solution.
One may think that traditional sexual morality was certainly better than today’s. But we are discussing a law that must apply to reality as it actually is, the reality that people follow.
This is not about the world as it should be (ethics), but the world as it is (politics).