The Justice Commission of the Chamber of Deputies has approved an amendment to bill on sexual violence to include the principle of mandatory consent, marking a significant change from previous law, which focused on physical coercion or threats. The amendment was presented by the parliamentarians Michela Di Biase (Pd) e Carolina Varchi (Brothers of Italy) with the support of party leaders Elly Schlein and Giorgia Meloni, and establishes that anyone who carries out or induces sexual acts without the consent of the other person will be punished with imprisonment from six to twelve years.
The consent it is defined as a “free, conscious and unequivocal manifestation of the person’s willingness to participate in the sexual act”, valid for the entire duration of the act and revocable at any time. The amendment will be presented to the House before passing to the Senate: its definition is in line with the jurisprudence of Court of Cassationwhich recognized as sexual violence also the acts carried out in the absence of physical resistance, but above all with the Istanbul Conventionratified by Italy in 2013, the first legally binding instrument in Europe on violence against women.
The Istanbul Convention: establishment and objectives
In 2005, the member states of Council of Europe (an international organization founded in 1949 with the aim of promoting human rights, democracy and the rule of law) have launched a large-scale campaign on the theme of domestic violence. The campaign revealed the scale of the problem on the continent and highlighted the need for common legal standards to ensure the same level of protection for victims everywhere in Europe.
As the main European human rights institution, the Council of Europe has promoted the development of the Convention on preventing and combating violence against women and domestic violence. The treaty was adopted by the Committee of Ministers of the Council of Europe on 7 April 2011; following the tenth ratification by Andorra on 22 April 2014, the August 1, 2014. Italy ratified the Convention in 2013.
The Convention is also the first international treaty to contain a gender definition as a “socially constructed category”, which defines “women” and “men” based on socially assigned roles, behaviors, activities and attributes. The document firmly established the link between the achievement of gender equality and theelimination of violence against womenrecognizing the structural nature of violence and that it is a manifestation of historically unequal power relations between women and men.
The Istanbul document was the first legally binding instrument in Europe on violence against women and, in scope, is the most extensive international treaty to address this serious violation of human rights, aiming for zero tolerance to make Europe and the world a safer place.
What the Istanbul Convention provides: the “4 Ps”
The Convention aims to protect women from all forms of violence with a comprehensive legal and policy framework for the protection and assistance of victims. The objectives of the document include the so-called “4 Ps”:
- Prevention: Member States have specific obligations to prevent violence, such as training professionals in contact with victims or promoting awareness campaigns. The treaty also calls on members of society, especially men, to help end violence against women.
- Protection: Measures are in place to protect and support victims by facilitating access to services such as free helplines, shelters, anti-violence centers or sexual violence referral centres. The provisions also include provisions relating to perpetrators.
- Criminal prosecution: The Convention defines and criminalizes various forms of violence against women and domestic violence: physical and psychological violence, stalking, sexual violence, forced marriage and abortion, and female genital mutilation.
- Integrated policies: Member States must develop and implement coordinated policies, involving government agencies, NGOs and authorities at national, regional and local levels, to ensure effective results.
Regarding the topic of consensus, central in the Italian case, the most important article on the topic is number 36, which concerns the non-consensual sexual acts: the Convention requires that States criminalize any act in which consent is not “given voluntarily as an expression of the person’s free will”; in this context, the absence of resistance cannot automatically be interpreted as consent.
The comprehensive approach distinguishes the Istanbul Treaty from all other measures before it, which takes into account various issues, such as gender perspective, addressing violence in the broader context of achieving gender equality, requiring States to implement equality policies and strengthen women’s empowerment. The document also focused on migrant women, asylum seekers or without documentsparticularly vulnerable to violence. The Convention, in fact, prohibits any discrimination based on the status of migrant or refugee: an entire chapter is dedicated to these women, to address the specificities of their situation.
