«Sand there is no clear yes, everything else is no, therefore, violence.” The Italian Parliament approved an epochal modification to article 609-bis of the Criminal Codeshifting the focus of the definition of sexual violence from the use of force to the absence of consent. A change of perspective that is not only normative, but profoundly cultural. Silence, the absence of resistance or resignation will never again be interpreted as tacit agreement.
“Free and current consent”: new legal pillar to define violence
The amendment introduces as a central element of the crime, the concept of “free and current” consentor the conscious, non-forced “yes” always in force for the entire duration of the act. If one of these components is missing, there is a lack of consent. This is not a bureaucratic technicality, but a real turning point in Italian criminal lawwhich aligns the country with the most advanced European and international standards.
From now on, as stated in the new article 609-bis of the Penal Code, he will risk the imprisonment of 6 to 12 years for anyone who “makes another person perform or undergo sexual acts» without “free and current consent”. For too long, in fact, the law has burdened victims of sexual violence of the unbearable burden of having to demonstrate one’s active rebellionthe physical trace of the struggle, the unmistakable sign of the threat or the evidence of deception. That paradigm, rooted in an outdated judicial culture, is today broken.
The double condition: autonomous and revocable will
The conceptual density lies in the adjectives: “free”or that consensus must not be the result of pressurepsychological manipulation or abuse of authority, but the spontaneous manifestation of an autonomous will.
“Current”or that consent cannot be presumed based on a previous relationship or previous sexual acts. It must be expressed and exist at the very moment the act occurswhich can be revoked at any time.
A new article introduced in the Law against violence against women completely changes the perspective (Getty Images)
Adaptation to the Istanbul Convention
In essence, the burden of proof is no longer on the physical “no” of the victim, but on the absence of an explicit, clear and voluntary “yes”.. In fact, if first the court had to ascertain the violence or threat, the means of coercion, now he must ascertain that the person had not given his consenteffectively equating the non-consensual act to rape.
This reform constitutes the response to requests made for years by jurists, civil rights associations and feminist movements, in particular for adaptation to the Istanbul Convention on preventing and combating violence against women and domestic violence.
Without consent it is rape
Ratified by Italy in 2013, Art.36 of the Council of Europe Convention clearly defines it rape as “sexual intercourse without consent”. The same article also underlines how consent “must be given voluntarily, as a free manifestation of the person’s will”. Italy, in this sense, closes the gap between the international commitment made in 2013 and the effective application in its Criminal Code. Italian law stops being a rubber wall and conforms to the maxim that acts as a compass for the most modern jurisprudence: “Only yes is yes”.
A unanimous agreement between PD and Brothers of Italy
What makes the turning point even more significant is the political process that produced it. The amendment, which updates an original bill by the deputy Laura Boldrini, was presented jointly by the Democratic Party and Fratelli d’Italiaa fundamental political convergence since it is a topic of civilization.
The turning point of this approval is that consent, finally, is no longer seen as a mere concession or as the absence of refusal, but as a fundamental human right that must be actively affirmed. In fact, if the Criminal Code it moves from the assessment of resistance to the assessment of willmeans that the State fully recognizes the physical and psychological autonomy of the individual.
A signal that goes beyond the law
The approval of this principle, close to the Day against violence against womenis a strong signal that goes beyond the simple modification of an article of law. It is the intent to produce a large-scale reflection: the most severe criminal laws alone cannot eradicate violence, but they can and must reshape the collective perception of what a lawful act is. Parliament’s move establishesdefinitively, that the freedom to say “yes” is inseparable from the freedom to say “no” and that the absence of a clear positive manifestation is, for the law, the insurmountable boundary that separates intimacy from crime.