The "delay in the reaction" of the "victim", or "in the manifestation of dissent", is "irrelevant" for the "configuration of sexual violence". And on this aspect "the jurisprudence is clear", because the "surprise" in the face of abuse "can be such as to overcome" the "contrary will", placing the victim in the "impossibility of defending himself".
This is what the Court of Cassation wrote, which, after the appeal of the deputy attorney general of Milan Angelo Renna, ordered, on February 11, a second appeal trial for a 48-year-old former trade unionist who worked at Malpensa airport, accused of abusing a hostess and acquitted because, the judges wrote, she could have opposed in "30 seconds". For the Supreme Court, the reasons for the two first and second instance sentences, which had caused so much discussion, are not "in line with the peaceful jurisprudential orientations" and that acquittal must be annulled with referral to a new second instance. According to the Court of Appeal of Milan, which had confirmed the verdict of the Court of Busto Arsizio (Varese) of 2022, those behaviors of the defendant (defended by the lawyer Ivano Chiesa), which the prosecutors contested as sexual abuse, were not such "as to place the injured party in a situation of absolute impossibility of avoiding the conduct". Conduct which, the judges argued, "certainly did not nullify any possible reaction of the injured party, having continued for a time window", i.e. "20-30 seconds", which "would have also allowed her to disappear".
The third criminal section of the Court of Cassation (president Giulio Sarno), four months ago, accepting the appeal of the Milanese Attorney General's Office also supported by the Attorney General of the Court of Cassation, ordered the second appeal considering, as can now be read in the reasons, that "both decisions" of the first and second instance "did not govern well the consolidated principles affirmed by the jurisprudence in the matter of sexual violence". In this case, explains the Court of Cassation, the judges of the two trials never "doubted the insidiousness and suddenness of the sexual acts", which constitute "in themselves sexual violence, but imagined that the duration of the contact excluded the insidiousness of the gesture and entailed the need for violence, threats and abuse of authority to pronounce the sentence".
Instead, the Court of Cassation clarifies, "it is clear" that the hostess (civil party with the lawyer Teresa Manenti), who had gone in 2018 to the then trade unionist "to expose a work problem and who had held the folder containing the documents in her hand the whole time, had remained completely disoriented and unprotected with respect to the man's behavior". Judges who clarify, in fact, how "in scientific literature" the phenomenon of emotional block or freezing is "explained, that is, the inability to react due to fear or confusion due to the unpredictability of the situation and the inability to face it". Nor, on the other hand, we read again in the reasons, "is there a model of reaction or a model of victim". For the Court of Cassation, the judges of the two trials decided that there was no violence with a "merely conjectural" conclusion. And even on the "failure to perceive the woman's dissent" the reasoning of the Tribunal and Court is "fallacious". In jurisprudence, the principle that whoever "acts" must acquire "the consent of the recipient of the sexual acts, or in any case not exclude it on the basis of the context, even in the case of a sudden gesture" is "undisputed". The new trial, to be set for appeal in Milan, will have to take into account these limits reaffirmed by the Supreme Court.
(Online Union)