Assessment of Consent Capacity in Victims of Sexual Violence: Role and Methodologies of Forensic Experts in Italy

• In Event: Sexual violence

Abstract

In Italy, judges are increasingly seeking the expertise of psychiatrists and psychologists regarding the sexual consent capacity of alleged victims of sexual violence. According to Article 609-bis of the Italian Penal Code, sexual violence is defined as coercion through violence, threat, or abuse of authority. Although the Italian Penal Code does not consider consent as an essential element in constituting the crime, consent is a fundamental right for self-determination and sexual freedom. Jurisprudence appears to be shifting towards a model that also considers the absence of consent, even in the absence of violence. Some rulings by the Corte di Cassazione have established that consent must be continuous and that its revocation during a sexual act constitutes a crime. Furthermore, the absence of consent, even implicitly, is sufficient to constitute sexual violence. Recently, a proposal has been made to amend Article 609-bis of the Penal Code, introducing the absence of consent as the sole necessary element for constituting the crime of sexual violence, in line with the Istanbul Convention. This discussion will present a qualitative analysis of semi-structured interviews with forensic psychologists and psychiatrists who have previously conducted assessments of sexual consent capacity. The aim is to highlight which elements appear to be relevant within their methodology for providing assessments to the court, the types of cases they are presented with, and the concept of the victim's psychological inferiority that results from such evaluations.

Authors

• Benedetta Barchielli, Department of Human Neuroscience, “Sapienza” University of Rome.

• Cricenti Clarissa, Department of Psychology, “Sapienza” University of Rome.

• Giulia Lausi, Faculty of Law, Vilnius University

• Stefano Ferracuti, Department of Human Neuroscience, “Sapienza” University of Rome.