“Trial to violence”. With the requisitions of the Public Prosecutor’s students, the arguments of the Defenders students and, finally, the Judges Students Council Chamber, ended today the project of DEVITALAW at the Tasso High School.

40 hours between investigations, debate and discussions in which the younglings simulated two trials, one on a case of sexual assault and the other on a case of revenge porn.

The Firm thanks the Head of the School, the Professors and especially the students for the enthusiasm and the commitment shown throughout the project.

 

The TG Sardegna report on the lecture by Prof. Avv. Roberto De Vita, President of the Cybersecurity Observatory of Eurispes and Titular Professor of the subject “Security in new technologies” at the Guardia di Finanza School of Economic and Financial Police, entitled “Cybersecurity – Cybersecurity in Public Entities and Companies“, sponsored by Eurispes, the Autonomous Region of Sardinia and IISTCG “Don Gavino Pes.”

The lectio magistralis on “Hyperconnected Society: between Analog Vulnerabilities and Digital Innovations” addressed the challenges of cybersecurity in the public and private spheres, with a special focus on the issues of adapting the national and European cyber security system to ward off cyber abuses and threats.

 

 

Prof. Avv. Roberto De Vita, President of the Cybersecurity Observatory of Eurispes and Titular Professor of the subject “Security in new technologies” at the Economic and Financial Police School of the Guardia di Finanza, will give a lecture entitled “Cybersecurity – Cybersecurity in Public Entities and Companies“, sponsored by Eurispes, the Autonomous Region of Sardinia and IISTCG “Don Gavino Pes,” which will also be attended by Commanders and Officers of the Police Forces.

The keynote lecture on “Hyperconnected Society: between analog vulnerabilities and digital innovations” will address the challenges of cybersecurity in the public and private spheres, with a special focus on the issues of adapting the national and European cyber security system to ward off cyber abuses and threats.

Eurispes President Prof. Gian Maria Fara will open the proceedings, followed by greetings from the Mayor of Tempio Pausania, Gianni Addis.

Dr. Gerolamo Balata, Director and Secretary General of Eurispes Sardinia, will introduce and coordinate the proceedings.

Download the event poster and lectio magistralis cover page here.

 

Listen to Prof. Avv. Roberto De Vita ‘s interview on episode 84 of “Serpente Corallo Social Club,” on Radio24, by Marco Lo Conte, Mauro Meazza and Stefano Elli.

“Trial against Violence. On the occasion of March 8, International Women’s Day, the classroom simulation phase of the DEVITALAW project at Liceo Tasso will begin: cases focusing on the issues of gender-based violence, consent and revenge porn will be addressed.

Students will simulate a cross examination, playing the roles of the trial parties.

 

“Trial against violence”. DEVITALAW ‘s project seminar series with Liceo Tasso begins today: third-year students, trying their hand as protagonists in simulations of the criminal trial, will address the themes of violence, consent and revenge porn.

The classes will be supervised in each activity by the project tutors: prof. Avv. Roberto De Vita, Avv. Valentina Guerrisi, Avv. Antonio Laudisa, Avv. Giada Caprini and Avv. Marco Della Bruna.

 

Revenge porn has reached alarming proportions in recent years and appears to be growing steadily. News cases and studies that have analyzed the phenomenon highlight the risk of widespread exposure: no one is excluded, from adolescents to institutional representatives, through public figures and ordinary people. A global phenomenon that continues to demonstrate[1] how fragile identity can be in the digital ecosystem. Affected social users would be 1 in 8[2], with even higher rates in the case of minors. If we add to this the fact that 51 percent of victims contemplate the possibility of suicide, we realize the seriousness of the problem[3].

In Italy alone, there are estimated to be more than two million victims and 14 million Italian accounts have viewed online images that were uploaded or disseminated without consent[4].

On Telegram groups dedicated to the Italian public, moreover, Permesso Negato’s Permanent Observatory found the number of non-unique registered users to be 13,152,000 accounts[Ibid.] According to another study, 4 percent of Italians are reportedly victims of revenge porn and nearly 9 percent say they know at least one victim[5]. In addition, 1 in 6 Italians would produce intimate images or videos and half of these would share them with other people[6].

The shocking dimensions that have been achieved are also due to the remoting of interpersonal relationships that occurred as a result of the Covid-19 pandemic[7]. People have acquired new habits and communicative behaviors that are also reflected in the construction of intimate relationships; a change that is not fleeting and that, once the emergency is over, has been consolidated into new ways of expressing affectivity.

Revenge porn is part of a broader phenomenon, nonconsensual pornography (NCP), not necessarily related to “relationship revenge” and involving the digital sharing/broadcasting without the consent of the person portrayed of images of a sexual nature: images taken consensually or voluntarily in the course of sexual intercourse or a sexual act but intended to remain private or to be shared privately; images captured by hidden cameras; images taken from electronic devices; images taken in the course of sexual assault. To the “traditional” forms of a digitally enabled phenomenon must now also be added the original creation of pornographic material through the use of AI, depicting faces and likenesses of real and often easily identifiable people: the so-called deepfake. Although of recent and still limited expansion, the sub-phenomenon has within it all the devastating potential of accelerating the widespread usability of artificial intelligence, also challenging current international and national regulatory instruments that to date remain essentially confined to material from real and not artificial creation.

With respect to the general phenomenon of revenge porn, already the study by U.S. academics Danielle K. Citron and Mary Anne Franks in 2014 had highlighted disturbing data. Attracting attention is not only the numbers regarding the extent of the phenomenon, but especially the severity of the repercussions on the lives of the survivors, specifying from the outset that we will speak predominantly in the female of the victims, since, according to published studies, between 62%[8] and 90%[9] of the victims are women. According to that study, 50 percent of intimate photos came with first and last names and links to personal social profiles, 20 percent were posted along with email addresses or phone numbers[10].

The first time revenge porn began to be widely discussed was in 2014. The phenomenon had affected numerous Hollywood movie celebrities, including actresses Jennifer Lawrence and Kate Upton. Their phones had been hacked and, as an immediate consequence, their intimate contents had been spread on the network, to the detriment of their personal dignity and reputation. This event also had strong psychological repercussions on the victims.

It is necessary – in fact – to consider revenge porn by analyzing it in its complexity, as a phenomenon with implications not only legal, but above all psychological, social and cultural. The exposure it entails or can entail-when this is only threatened-has significant consequences for the lives and identity development of people who experience these traumas.

As seen, from a phenomenological point of view, the locution revenge porn does not pertain so much and only to the revenge of the partner who, after the termination of a relationship, decides to share with third parties, friends or web users, the images depicting what was their partner.

And in fact, very often, the agent’s goal is not revenge, nor is it a personal feeling: revenge porn is only one part of a broader set of injurious behaviors, brought back under the name of nonconsensual pornography (NCP). Whether revenge porn is directed at humiliating and harming the person caught in the images[11], the use of such a name may lead to semantic misunderstanding and at the same time not be representative of the entirety of the phenomenon. This is because the word revenge carries with it the implication that the recipient of revenge has-in some way-caused or instigated it by his or her own behavior. The NCP definition is more representative of the different forms of the phenomenon: dissemination of images of a sexual nature of individuals without their consent, excluding, therefore, commercial pornographic distribution[12].

There are numerous PCN sites, which encourage their users to upload intimate photos and videos of their ex-partners for revenge. It is also common for them to offer the service in the context of forums, where other users have the opportunity to post derogatory or vulgar comments about women in pictures. The first of these sites was created in 2010 by Hunter Moore. In just 3 months in 2011, it received 10,000 photo uploads. At the time, the FBI investigation focused on determining whether the material had been stolen. The conviction that followed was based on identity theft and unauthorized access to victims’ accounts[13]. In any case, many other nonconsensual pornography sites have since been created that have a large following[14].

Among the immediate consequences of exposing one’s intimate images to the public (precisely because they are often associated with identifying references) are sexual harassment and threats: anonymous strangers may send e-mails and messages threatening rape and other violence. Some have been told, “First I will rape you, then I will kill you.”[15].

The phenomenon is growing rapidly, not only because of the increasing ease of sharing and dissemination of images, but also because of the normalization of affective and sexual scouting through the creation and exchange of the material object of future violation-as in the case of sexting. To get an idea of how usual it is, especially among minors, to share sexually oriented content, we can cite a 2018 study conducted within the American Medical Association. It was estimated that out of 110,380 underage participants, 14.8% and 27.4%, respectively, had sent or received sext. Furthermore, the percentages of those who had forwarded one of these sexts without consent or had undergone such forwarding are 12% and 8.4%, respectively[16].

It has become infamous, in Canada, the case of Amanda Todd, a 15-year-old girl who in 2012 took her own life after a nude photo of herself was sent to her friends and schoolmates[17].

In many cases, the minors who sent in their photos were coerced or received strong pressure to do so. According to a recent study, girls and non-binary people would receive the most pressure (77.5% and 77.8%), followed by boys (68.4%)[18]. According to a survey conducted by the Massachusetts Aggression Reduction Center, moreover, most of the time these incidents occur in the context of close relationships[19].

Among younger people, the phenomenon of sextortion (from sex and extortion, the practice of forcing someone to do something, often sexual acts, by threatening to publish nude photos or sexual information[20]).

In a study conducted by Snap[21], nearly two-thirds of Generation Z respondents (ages 13-24) across all platforms and devices-not just Snapchat-said that they or friends were targeted in the mode of “catfishing[22] or were hacked by criminals who stole explicit personal images or other private information. In both cases, the material obtained was used to extort money or other intimate content.

According to Thorn, the startup co-founded by Ashton Kutcher and Demi Moore, 1 in 4 victims experience episodes of sextortion as early as age 13. Almost half of the victims are threatened on a daily basis in order to extort new images, which feed this cycle of abuse[23].

Another study in 2019 highlighted how the numbers of minors involved is percentageally higher than the numbers of adults on the respective samples analyzed. It can easily be inferred that younger people, born with smartphones, are naturally more inclined to expose themselves through these tools. That study, published by Cyber Civil Rights Initiative, found that 8.02 percent reported having been victims of NCP, while 5.12 percent reported having disseminated the material, creating NCP. Most victims (about 70 percent), were subjected to the conduct of their current partner (31.15 percent) or a previous partner (39.75 percent). NCP perpetrators also stated the relationship they had with their victims: in most cases it was their partner (39.1%) orex-partner (24.36%), followed by friends and strangers[24]. Furthermore, according to another study published by Cyber Civil Rights Initiative during the Covid-19 emergency, pre-pandemic physical victimization proved to be a reliable predictor of sextortion incidents that occurred during the pandemic[25].

Another problematic aspect also lies in the lack of awareness-especially of minors-in the use of social channels, from the most innocuous TikTok to OnlyFans: there is a lack of perception that one can leave indelible marks on one’s digital image, negatively affecting all aspects of one’s life. Caution in sharing not only protects against potential exposure to sexual predators, but also against injury to one’s digital reputation.

According to recent analysis, for example, about 90 percent of employers use search engines and social media to gather information about candidates for jobs, and about 80 percent have turned down a candidate because of that same information. The most common reasons given are lifestyle concerns, inappropriate comments, and inappropriate photos and videos. Selectors do not ask the victims whether they posted the images to them or whether the images were uploaded against their will. Employers simply do not want to risk hiring people whose public image could have a negative influence on corporate reputation[26].

In Italy, too, according to similar research carried out by Adecco (“Work Trends Study” 2019/2021), recruiting activity is mainly carried out online, and in particular, 43.8 percent of it on social media (so-called social recruiting). 44.1 percent of recruiters happened to exclude a candidate after viewing his or her social profiles, especially in the case of discovering inappropriate photographs.

Several studies have highlighted the heavy mental health consequences for victims: post-traumatic stress syndrome, anxiety and depression, humiliation, problems having intimate relationships, loss of self-esteem and self-confidence. The described symptoms are often accompanied by the presence of so-called coping, or coping strategies, denial or avoidance mechanisms with respect to the NCP event. These are all negative consequences that are also normally found in survivors of rape and other types of sexual assault[27].

According to psychiatrists Mudasir Kamal and William J. Newman, the effects on the psyche are anger, guilt, paranoia, depression, and suicidal instincts. From here, personal relationships can quickly deteriorate, leading to isolation. The long-term consequences on victims of revenge porn are similar to those found in victims of child pornography: humiliation and a sense of helplessness[28].

The criminalization of the phenomenon

It is very clear that a phenomenon of this magnitude and severity needs to receive a regulatory framework to deal with it, both by ensuring protection and assistance to victims and by sanctioning perpetrators and supporting the prevention contrast and the activation of timely safeguards to prevent or contain the dissemination of images.

At the international level, national regulations have fitted into the framework of existing conventions, most notably the “Convention (UN) on the Elimination of All Forms of Discrimination against Women” of 1979 and the “Council of Europe Convention on preventing and combating violence against women and domestic violencea” of 2011 (the so-called Istanbul Convention). When they were signed, however, no thought was given to the new violence, carried out through means barely imaginable at the time.

The Philippines was among the first states to introduce specific regulations against revenge porn, with the“Anti-Photo and Video Voyeurism Act of 2009” [Under this act, conduct involving a series of photos or videos of a sexual nature that were taken without the consent of the person involved and under circumstances in which that person has a reasonable expectation of privacy is punishable. Thus, material filming, copying or reproduction, sale or distribution, publication or dissemination, display or exhibition, as well as having facilitated the preceding conduct are punishable] due to the early and wide spread of the phenomenon in the country, with sentences of up to seven years in prison. However, it was soon realized that merely responding in terms of sanctions was not an effective safeguard.

The real challenge, in fact, is to have the ability to intervene preemptively or, at least, promptly, trying to prevent the breach from causing the ongoing and permanent damage that characterizes releases of personal material.

The United States represents the most advanced legislative laboratory on the subject. In fact, currently 48 states, joined by the District of Columbia, Guam and Puerto Rico, have introduced specific legislation to punish NCP conduct. Penalties vary widely, from cases where up to one year in prison is provided, to those where the most serious offense can result in up to ten years in prison[29].

Proving that anyone can be affected, there is the case of Texan Joe Barton, a U.S. congressman, whose image was harmed by an unauthorized broadcast in 2017. The Republican politician had sent an intimate photo to a woman with whom he was in a relationship, only to find himself exposed all over social media[30].

In a paper prepared for the U.S. Department of Justice, analyst Samantha Brunick considered the difficulties faced by the private individual who becomes the victim of such an assault. For people who don’t know how to take action, he recommends turning to associations in the U.S. that provide free legal aid for victims, such as The Cyber Civil Rights Legal Project[31].

Cases involving minors and sexual extortion, in the FBI’s experience, are the most devastating on victims’ lives. “Oncethe criminal gets hold of the image, that child’s life is turned upside down,” argues Special Agent Ryan Barrett[32].

However, the absence of a federal revenge porn law is being criticized, not least because legislation would be needed to deal with the new related phenomena, such as the use of AI deep fakes for image creation. In fact, Rebecca Delfino of Loyola Law School has proposed a possible draft of a “Pornographic Deepfake Criminalization Act,” structuring a series of extra-legal support tools that could accompany the legislation, from awareness-raising interventions to technological responses to the phenomenon[33].

In England and Wales, revenge porn has been an offence since 2015: prison sentences of up to two years are available[34]. In Scotland, by contrast, the regulations introduced in 2016 allow for penalties of up to five years in prison[35].

A hotline, Revenge Porn Helpline, was established in the United Kingdom in 2015. In the early days it received between 50 and 60 reports per month. In 2022, it received 923 phone calls, and the chatbot introduced in February that year was activated 5826 times[36].

The Code Red intervention

Specific regulations on revenge porn were introduced in Italy in 2019. Within the so-called Red Code[37], in force since 09.08.2019,Article 612 – ter of the Criminal Code, “Unlawful dissemination of sexually explicit images or videos,” has been included. This offense punishes the conduct of anyone who, after making or taking sexually explicit images or videos intended to remain private, sends, delivers, assigns, publishes or disseminates them without the consent of the persons depicted. Any person who has received or otherwise acquired the same images or videos and makes the same use of them for the purpose of causing harm to the persons depicted shall also be punished. The penalty is imprisonment of one to six years and a fine of 5,000 to 15,000 euros. In addition, aggravating factors are provided for the commission by persons related or already related by emotional relationship to the victim, by telematic means or to the detriment of a person in a condition of physical or mental inferiority or to the detriment of a pregnant woman. Except in the latter case, it is a crime prosecutable on complaint by the offended person.

Since the introduction, several sentences have made headlines, such as that of the Sulmona District Court, which in 2023 sentenced a 22-year-old man to one year and four months’ imprisonment for disseminating and then removing after a few minutes nude images of his ex-girlfriend[38].

Total court cases, as of September 2023, were already 4821, in 69% of which the victims were female and 17% were minors[39].

In a case of particular interest, the Supreme Court recently had occasion to address some hitherto dubious issues in the case law of the merits[40].

First, the court held that the crime is consummated with the first sending of the images, even if directed to a single person, regardless of whether-as in the case at hand-it was directed to a family member of the victim, who was not interested in feeding subsequent disseminations. In fact, the provision “makes no issue of the reiteration of the diffusive conduct, nor does it ‘quantify’ or qualify in any way the harmful diffusion of the protected good“; and with respect to the latter, the Court emphasizes the protection guaranteed by the rule to the victim’s sexual self-determination[41].

In addition, the Court confronted the purpose of harm that characterizes further disseminations (in which it also includes those who received the material directly from the victim), confirming the problematic interpretative direction that identifies the subjective element in specific intent, determined by an incomplete normative provision. And in fact, Art. 612 ter paragraph 2 of the Criminal Code, in punishing further dissemination, requires that it be done with the purpose of causing harm to the portrayed subjects, and this is likely so as not to generalize the punishability of the revenge porn unaware (the case of the person who receives material whose criminal origin he has no basis for deriving and then disseminates it in turn). The legislature, using a perimeter of punishability not on the material element, but on the subjective element of the norm (sub specie specific intent) has, however, effectively created a gray area of non-punishability for those individuals who, while aware that they have received material originating from NCP, disseminate it without any purpose of specific harm to the subjects filmed. In the latter case, according to current Supreme Court guidance, it would not be possible to derive specific intent from mere awareness of the non-consensual origin of the pornographic material.

Finally, what is to be understood by “sexually explicit” images is clarified. In particular, the Court concludes that “For the purposes of the crime under Art. 612 ter of the Criminal Code, the unlawful dissemination of sexually explicit content may have as its subject matter images or videos depicting sexual acts or genital organs or even other erogenous parts of the human body, such as breasts or buttocks, nude or in conditions and context such as to evoke sexuality“.

It remains, however, doubtful and problematic whether the rule can also be applied to cases of the production of verisimilitude (but not true) images via AI deepfake, without having to resort residually to other cases. In light of the extensive and growing use of the instrument, the jurisprudence will probably soon have to confront this interpretive dilemma as well; unless, as proposed in other jurisdictions, they plan to intervene soon with the introduction of an additional and specific case.

Also decisive for the enactment of specific sanctioning regulations were, in Italy, the cases concerning first Tiziana Cantone, then Congresswoman Giulia Sarti. The former in particular highlighted a serious systemic flaw in the approach to protecting the victim, whose intimate videos had spread considerably on social media and the webingeneral, so much so that it led to the woman’s suicide more than a year after the complaint.

In Italy, too, the most recent debate has gradually focused not only on strictly sanctioning aspects but also on those related to the protection of offended persons and the need for preventive and timely intervention for potential victims. Still, in fact, one in three victims think that such conduct does not constitute a crime in our country[42].

Law enforcement tools

From a technical point of view, the reaction aimed at preventing or limiting the dissemination of the images must start with an immediate denunciation that allows the activation of the police force and the ability of the latter to interact internally with specialized departments, such as the Communications Police. In fact, specialized technical activity is needed in a police and judicial intervention context.

In the case of WhatsApp or Telegram, it is possible for law enforcement to identify duplicate content and use various techniques to neutralize it (in a peer-to-peer network it is necessary, for example, to identify points of disclosure). Consider that there are currently hundreds of chats on Telegram dedicated exclusively to the exchange of NCP material (and growing all the time)[43].

You do not work at the beginning to curb the content, but to rebuild the ramification of the shares. There are tools that can understand how the communication occurred and can identify the devices at either end of the communication with considerable effectiveness. In fact, common messaging systems are end-to-end networks, thus without dubious or anonymous exchange points. It may be difficult, because of the principles of cryptography on which they are based, to know with certainty what has been disclosed; however, it is easy to ascertain whether communication has taken place and between whom. Each message has a sender and a recipient, whether it is a single address or a group. Each recipient of content can become a sender, and through this relationship branching can be reconstructed. It is also possible to damage the content originally shared; in fact, what we normally forward is not saved on our device, but on the first sender device.

If the disclosure takes place on the Web, the matter changes, since the aforementioned element of easy tracking of the content’s path is lacking. However, uploading a piece of content to a social network such as Facebookmakes easy and certain removal possible. However, one should not confuse simple reporting to the site with a true active removal operation, for which highly specialized personnel are needed.

As you can imagine, there remains the problem of already downloaded content. It is complicated, because of the difficult tracking of content, that a user can be prevented from downloading a file, wait some time, and share it again. It must be borne in mind, however, that because of the enormous mass of data we are inundated with on a daily basis, the commonly adopted model is one of content acceptance but not retention (file saving). In the most egregious cases of dissemination of intimate images, rescue tends to occur when the incident has become newsworthy.

Regarding the issue of law enforcement training, it is necessary for those receiving the complaint to be able to understand that often it is not the image as such that is the problem. In fact, images are frequently disseminated that are the result of legal filming because they are made by consenting persons of legal age and sometimes even initially exchanged consensually. It is therefore necessary to set aside the legal aspect of the origin of the image (or the first sharing) and focus on the illicit subsequent dissemination and technical aspects of it, as well as the psychological impact of the act on the person portrayed. If following a complaint we are limited to a report to Facebook or Instagram, for example, we are taking an ineffective approach, not for lack of means, but for lack of knowledge of the phenomenon.

Even in cases of sextortion, action can be taken to neutralize the threat in a short time. Also, if you are in possession of the images with which you are being blackmailed, you can track them down and delete them. Moreover, by collaborating with platforms such as YouTube or those under Meta, it is possible to provide the images; thus, by already knowing the footprint of the file, they are able to prevent its publication before it even happens.

In addition, from 2021, Art. 144 bis in the Privacy Code, which provides for the possibility of making reports or complaints to the Privacy Authority for individuals who have a well-founded concern that their explicit images have been disseminated without consent. If the Authority considers the report to be well-founded, it shall take a measure within 48 hours to prevent the dissemination of the material and forward it to the digital platforms. To this end, the Authority has activated a dedicated platform on its website[44] which, however, given its recent introduction, still does not allow to measure the effective prevention and implementation capacity of early response.

Since the activation of the service, measures and referrals have increased by leaps and bounds: in the first eleven months of 2023, there were 264 interventions by the Authority compared to 51 in 2022; referrals, on the other hand, more than tripled from one year to the next[45].

The loneliness of minors

As mentioned at the outset of this reflection, minors are the most exposed and vulnerable victims. There are several studies that have pointed out, even recently, that more and more images are being shared privately between minors themselves and then disseminated without their consent, through images stolen from younger children or extorted through sextortion, fueling a so-called “self-produced” child pornography market[46].

It seems necessary to raise awareness among teens and parents about the first mode of defense against predators: protecting sexual identity in the digital sphere. A neutral, sometimes superficial, approach to publishing and sharing various forms of nudity, one’s own or one’s children’s, is now common. Lowering one’s defenses about what one shares publicly, moreover, only makes one even more vulnerable and casual in the exchanges that take place in the (supposedly) private sphere.

As highlighted, very often sextortion incidents originate from material produced in a serene condition by the victims themselves, perhaps intended for one or a select few people, or even for storage only on their own device.

Minors, digital natives, learn – even before they can read and write – how to relate through electronic devices within the digital ecosystem: their entire relationship life is progressively structured through social networks and constructed through image sharing. Therefore, from the onset of sexual interest and their sexual affectivity, the net is the natural landing place and social media the extended relationship context.

Sharing images of one’s body and sexuality with friends or partners, therefore, has become the widespread norm of discovery and fostering, regardless of the social background or geographic origin of the children[47].

This explains the numbers of the spread of the phenomenon of non-consensual child pornography and the difficulty of basing prevention solely on generic reporting of dangerousness of the network. When the actual occurrences then take place, minors also find it more difficult to seek and find help. Quite often, as in cases of cyberbullying, they tend to isolate themselves and hide the problem, delaying the activation of support and technical containment of the spread, which is instead always possible. It is no coincidence that in many countries there are active campaigns in schools aimed at effective education of minors in responsible digital behavior and to inform them how to defend themselves, react and stop the sextortion (also widespread among minors themselves) and that in most advanced democratic countries there are active hotlines dedicated to minors specifically concerning the phenomenon of revenge porn.

Prof. Avv. Roberto De Vita
Avv. Giada Caprini
Avv. Marco Della Bruna

 

References

[1] Compared to previous insights, in fact, the phenomenon has continued to grow: R. De Vita, M. Della Bruna, Non Consensual Pornography: from revenge porn to sexual extortion., Eurispes Cyber Security Observatory, 12/17/2019.

[2] https://cybercivilrights.org/2017-research-infographic/

[3] www.cybercivilrights.org/wp-content/uploads/2014/12/RPStatistics.pdf

[4] https://www.permessonegato.it/doc/PermessoNegato_StateofRevenge_2022.pdf

[5] https://www.permessonegato.it/doc/PermessoNegato_Ricerca_Revenge_2022.pdf

[6] The Fool, “Revenge Porn Research“.

[7] V.C. Cordeiro, Prevalence and impact of cyber sextortion on teenage boys, Humanium, 21.11.2023.

[8] www.cybercivilrights.org/wp-content/uploads/2014/12/RPStatistics.pdf

[9] www.endrevengeporn.org

[10] D.K. Citron, M.A. Franks, Criminalizing Revenge Porn, 9 Wake Forest Law Review 345, 2014

[11] Ibid.

[12] Ibid.

[13] D. Tolentino, FBI investigation into Is Anyone Up? shows legal limitations in revenge porn cases, 16.10.2018.

[14] S. Bates, Revenge porn and mental health: A qualitative analysis of the mental health effects of revenge porn on female survivors, Feminist Criminology, Vol. 12(1) 22-42, 2017.

[15] D.K. Citron, Hate Crimes in Cyberspace, Harvard University Press, 05.09.2016.

[16] S. Madigan, A. Ly, C. L. Rash et al, Prevalence of Multiple Forms of Sexting Behavior Among youth, JAMA Pediatr., 2018

[17] www.bbc.co.uk/newsbeat/article/19960162/amanda-todd-memorial-for-teenage-cyberbullying-victim

[18] Parts K, Sanders CE, Englander EK. Sexting at an Early Age: Patterns and Poor Health-Related Consequences of Pressured Sexting in Middle and High School. J Sch Health. 2023 Jan;93(1):73-81. doi: 10.1111/josh.13258. Epub 2022 Oct 17. PMID: 36251455; PMCID: PMC10092123.

[19] E. Englander, Coerced Sexting and Revenge Porn Among Teens, Bullying, Teen Aggression and Social Media. March/April. 19-21

[20] https://dictionary.cambridge.org/dictionary/english/sextortion

[21] https://www.weprotect.org/blog/two-thirds-of-gen-z-targeted-for-online-sextortion-new-snap-research/

[22] The practice of pretending on social media to be someone different in order to deceive or attract another person, https://dictionary.cambridge.org/dictionary/english/catfishing#google_vignette

[23] www.thorn.org/sextortion/

[24] Y. Ruvalcaba, A. A. Eaton, Nonconsensual Pornography among U.S Adults: A Sexual Scripts Framework on Victimization, Perpetration, and Health Correlates for Women and Men, Psychology of Violence, 10(1), 68-78.

[25] https://cybercivilrights.org/wp-content/uploads/2022/05/COVID-and-Sextortion-Eaton-2022.pdf

[26] K. Coleman, 52 Online Reputation Statistics for 2023, Status Labs; Online Reputation in a Connected World., JOB-HUNT 1, 3, 8 (Jan. 2010); S. Bond, A messy digital footprint can cost you a job, Financial Times, 12.10.2018.

[27] Murça A, Cunha O, Almeida TC. Prevalence and Impact of Revenge Pornography on a Sample of Portuguese Women. Sex Cult. 2023 Jun 3:1-17. doi: 10.1007/s12119-023-10100-3. Epub ahead of print. PMID: 37360017; PMCID: PMC10239214; S. Bates, Revenge porn and mental health: A qualitative analysis of the mental health effects of revenge porn on female survivors, cit.; R. Campbell, E. Dworkin, G. Cabral, An Ecological Model of the Impact of Sexual Assault On Women’s Mental health, Sage Publications, 2009

[28] M. Kamal, W. J. Newman, Revenge Pornography: Mental Health Implications And Related Legislation, Journal of the American Academy of Psychiatry and the Law, 44 (3) 359, 367, 2016.

[29] www.cybercivilrights.org/revenge-porn-laws/

[30] A. Bernstein, Is Republican Congressman Joe Barton A Victim Of Revenge Porn?, Newsweek/Reuters, 11/22/2017.

[31] S. Brunch, Revenge Porn: Can Victims Get Images Off the Internet?, in Cyber Misbehavior, May 2016 Volume 64 Number 3.

[32] FBI, FBI Launches Sextortion Awareness Campaign in Schools, 03.09.2019.

[33] R.A. Delfino, Pornographic Deepfakes: The Case for Federal Criminalization of Revenge Porn’s Next Tragic Act, Fordham Law Review, Vol. 88 issue 3, 2019.

[34] Criminal Justice and Courts Act 2015.

[35] Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

[36] https://revengepornhelpline.org.uk/assets/documents/rph-report-2022.pdf?_=1681885542

[37] L. July 19, 2019, no. 69: Amendments to the Criminal Code, Code of Criminal Procedure, and other provisions on the protection of victims of domestic and gender-based violence

[38] P. Iavarone, She leaves him, he posts video of ex naked then deletes it after a few minutes. Convicted the same, 24.11.2023.

[39] Ministry of the Interior, Department of Public Security, Central Directorate of Criminal Police, The Point. Prejudice and violence against women, December 2023.

[40] Cass. pen. sec. V, sent. no. 14927 (hearing Feb. 22, 2023, dep. April 7, 2023), rel. Brancaccio.

[41] This passage stimulated the observation that even just showing the images, without actual divestment, would be enough to affect the victim’s self-determination: https://www.sistemapenale.it/it/scheda/caletti-la-prima-pronuncia-di-legittimita-sullart-612-ter-cp#_ftnref26

[42] https://www.permessonegato.it/doc/PermessoNegato_Ricerca_Revenge_2022.pdf

[43] https://www.permessonegato.it/doc/PermessoNegato_StateofRevenge_2022.pdf

[44] https://servizi.gpdp.it/diritti/s/revenge-porn-scelta-auth; https://www.garanteprivacy.it/home/docweb/-/docweb-display/docweb/9811771

[45] B.L. Mazzei, Revenge porn, stops decided by the Guarantor quintupled in 2023, 21.12.2023.

[46] Quayle, E. Self-produced images, sexting, coercion and children’s rights. ERA Forum 23, 237-251 (2022). https://doi.org/10.1007/s12027-022-00714-9.

[47] Internet Watch Foundation, Hotline reports ‘shocking’ rise in the sextortion of boys, 09/18/2023.

Prof. Avv. Roberto De Vita will deliver a lecture today for the International Residential Course “Investigative Activities for the Economic-Financial Combating of International Organized Crime” for the benefit of no. 32 Police Officers and Officers from Organization of American States (OAS) Member Countries,” at the Guardia di Finanza Economic and Financial Police School.

Crimes against the PA, anti-corruption legislation and control systems in the EU and Italy“: the lectures of Prof. Avv. Roberto De Vita ‘s teaching for the 35th “Economic Financial Investigator” Qualification Course at the Guardia di Finanza School of Economic and Financial Police begin today.

 

Read the original article on The Messenger

February 5, 2024 marked the beginning of the work of the “Generative Artificial Intelligence Learning and Innovation Hub” Observatory sponsored by Unimarconi, Italy’s first digital university.

The Observatory’s mission aims to play a key role in the development and application of Artificial Intelligence (AI) in Italy, focusing on an in-depth analysis of the scientific, economic, ethical, regulatory and educational implications related to this revolutionary technology.

The scope of the Observatory will focus primarily on Generative Artificial Intelligence and, in particular, on the Training of Skills necessary for its best application including through the use of this technology.

Authoritative representatives from the world of Education and Training, Research, Industry, Technology and other important sectors (Defense and Security, Legal, Communication, Sports, Third Sector) that can contribute to the ethical and sustainable development and application of Generative Artificial Intelligence in Italy have been called to join the Observatory.

The following experts, along with Director Luca Manuelli and the 3 representatives designated by Unimarconi Arturo Lavalle, Tommaso Saso and Ernesto De Luca, are part of the Observatory: Piero Azzalini of Fincantieri, Father Paolo Benanti, Marco Bentivogli, Stefano Besana of Deloitte, Stefano da Empoli of I-Com, Roberto De Vita of DEVITALAW, Roberto Fraccapani of SAP Italia, Giovanni Gambaro of RINA, Marco Gay of Digital Magics, Stefano Greco of CDP, Riccardo Meloni of Sport and Health, Alex Moscetta of the Community of Sant’Egidio, Dario Pagani of Eni, Ezia Palmeri of the Ministry of Education and Merit, Davide Rizzo of A2A, Fiammetta Salmoni of Defense Industries Agency, Giuseppe Saragò of Wartsila, and Flavio Tonelli of UNIGE.

The Observatory will operate on an international dimension through the support of major multinational entities and the involvement of renowned Italian IA specialists working abroad.

Among the first activities initiated by the Observatory, also in view of the G7 scheduled to take place in mid-2024 in Italy where the topic of Artificial Intelligence will be at the center of the agenda, is the preparation of a Position Paper that addresses useful recommendations to the government and key national and international Stakeholders on the topic of the skills needed to be able to best develop, apply and manage Generative Artificial Intelligence in all professional and everyday areas.

“In an increasingly interconnected and technologically advanced world, the birth of the Generative Artificial Intelligence Learning and Innovation Hub Observatory marks a key step toward the understanding and ethical application of artificial intelligence in Italy.

This week, the firm welcomed two students from the “Torquato Tasso” State Gymnasium High School as part of a Ministry for Education Path for Transversal Skills and Orientation (PCTO).

The project allowed the younglings to work alongside the firm’s professionals to learn about the role of the criminal lawyer and orient themselves in the criminal justice system.

“Security in the new technologies”: the lessons of Prof. Avv. Roberto De Vita for the Officers of the 51st Higher Course of the Guardia di Finanza School of Economic Financial Police.

Minors, even under 14, increasingly enlisted by organized crime, baby gangs structured, armed and ferocious as clans, drug dealing experienced as “school-to-work alternation” and group sexual violence as teenage exuberance, criminal patterns as sung and acted out lifestyles.

Juvenile delinquency is becoming increasingly “normalized,” inscribed as part of a generalized “juvenile malaise” rather than deviance in the strict sense, a symptom of a changing society, but also of inadequate institutions and instruments of prevention and counteraction. The city of boys is a world now inhabited by the ghosts of frustrations and pain, of unattainable dreams, anesthetized by alcohol and drugs, with a frightening increase in addiction among younger and younger youth. A city abandoned by adults, always busy with something else, inadequate and disoriented, ready to flee from parental failure and bent on blaming schools and institutions, frightened and now resigned.

In the face of a society increasingly alarmed by a youth experienced as deviant, dangerous and out of control, Italy’s juvenile justice system (the result of multiple legislative interventions, layered but not organic) manifests the chronicity of its inability, not only to achieve its original purposes but, above all, to be perceived as a bulwark of juvenile protection and juvenile crime prevention.

In recent decades, the population of juvenile defendants in Italy has undergone significant changes, reflecting social, cultural and legislative dynamics that have shaped the juvenile justice environment in the country.

One of the most obvious transformations concerns the perception of criminal responsibility for juveniles. Over the years, there has been a shift in approach from a strict-paternalistic view to a paradigm more oriented toward individual responsibility. This change was most evident with the 1988 reform, which introduced the institution of suspended trial with probation for the juvenile defendant, aimed at actively involving the juvenile in his or her own reeducation.

With this in mind, there has been a growing awareness of the importance of avoiding the systematic use of imprisonment for juveniles. This has led to the implementation of programs and initiatives aimed at providing reeducational and preventive solutions, thereby reducing the number of incarcerated youth. Suspension of trial, the institution of “irrelevance of the fact,” judicial pardons, and other measures aimed at the juvenile’s rapid exit from the juvenile justice system (considered afflictive and stigmatizing in itself) have, however, often gained ground as deflective tools for court workloads and the dramatic shortage of resources for juvenile social services. An approach that has also reduced, if not eliminated altogether, confrontation with victims (who are almost always absent in juvenile proceedings) and which, moreover, proves totally inadequate in the face of the exponential increase in group crime phenomena. The result is that the juvenile not only does not confront the punishment (regardless of the nature of the punishment), not even in terms of the fear experienced, but also does not confront the process and the victims: elements, the latter, that constitute pathways that are nonetheless empowering.

The phenomena of greatest alarm: baby gangs

In 2022, there were 14,221 juveniles in the juvenile welfare service’s charge in criminal proceedings for the most serious offenses, including 6,400 from Campania. There were 400 juveniles detained at the 17 Juvenile Correctional Institutions, of whom 201 (50 percent) were foreign minors, mainly Romanian, followed by Moroccan and then Albanian.

Alongside the phenomenon with greater diffusion in the south of Italy and in particular in Campania and the metropolitan cities of Sicily and Apulia, of the enlistment by the mafias of young boys for activities of transportation and drug dealing, the juvenile criminal phenomenon that has been of greatest concern in recent times is represented by the so-called “baby gangs,” groups composed of minors and sometimes young adults, who make themselves the protagonists of particularly alarming crimes: fights aggravated by the consequences and use of firearms, murders, robberies and extortion.d. “baby gangs,” groups composed of minors and sometimes young adults, who become the protagonists of particularly alarming crimes: fights aggravated by the consequences and use of firearms, murders, robberies and extortion, organized drug dealing with widespread and capillary networks, and group sexual violence.

According to data collected in the area by the Police and Social Services, the most distinctive features of baby gangs are the severity and repetitiveness of the crimes committed[1]. Groups often differ in common socio-anagraphic characteristics of members, type of social media activity, and an attempt to operate forms of control over their territory.

It is particularly difficult to operate an analytical data collection activity to identify the number of youth gangs in the territory and the incidence of these on the total number of crimes committed by juveniles. However, there are a number of indicators that can at least provide a picture on the growth of the phenomenon.

A 2022 research conducted in collaboration with the Ministry of Justice showed that there has been a noticeable increase in press articles containing references to “juvenile gang” or “baby gang” over the past few years. Specifically, it rose from 612 in 2017 to 1909 in 2022.

Although the extent of this increase may in part be due to increased public awareness of the issue, the Provincial Carabinieri Commands and Police Headquarters state how cases of fights, beatings, injuries, thefts or robberies on public streets and disturbance of the public peace attributable to baby gangs are on the rise during the same period.

Another relevant fact is the composition of these groups: the majority of the teens are Italian and about half do not come from socio-economic hardship situations, with a prevalence of teens between the ages of 15 and 17.

There are different types of baby gangs, some of which are inspired by homegrown or foreign organized crime groups, but the most prevalent are groups of unorganized teens with weak social ties and without defined hierarchies or specific criminal aims, devoted mainly to occasional violent or deviant activities.

According to data from the USSM (Juvenile Social Service Offices), only 3 percent of boys involved in juvenile gang-related crimes end up in juvenile correctional institutions. Most, however, are involved in reeducational programs: the institution of probation is applied to about 50 percent of these minors.

However, it is shown that alongside the albeit commendable activities of study, work, socially useful or mediation with victims, there are very few (around 15 percent) prescriptions regarding compliance with schedules or prohibitions to frequent certain places and people.

This aspect, on the other hand, should assume primary importance for defendants for crimes committed with other minors. In fact, during the adolescent period, the major influencing factors on a person’s personality formation are family support and relationships with one’s peers[2].

According to some studies, adolescents with prosocial friendships or groups would be less likely to engage in antisocial behavior (so-called peer pressure[3]) and would also be better able to cope with any adversity from the family unit[4]. In fact, peer disapproval of criminal behavior would reduce the commission of violent crimes.

In contrast, hanging out with deviant peers is very often the most significant predictor of antisocial behavior[5].

The problem of youth gangs has been addressed in various ways in foreign legal systems, with the approach taken often influenced by the severity and prevalence of the phenomenon in each nation. In the United States in particular, baby gangs have been a major focus of public debate. In fact, the phenomenon has had a significant impact especially in urban communities, giving rise to coping strategies that have evolved over time. In the 1980s and 1990s, some U.S. cities implemented more aggressive approaches, using particularly strong“law and order” policies and increasing penalties for gang-associated crimes.

However, in recent decades, there has been a transition to more prevention- and rehabilitation-oriented approaches. Prevention programs, social service interventions, educational opportunities and reintegration programs have been developed to provide alternatives to gang life and reduce youth vulnerability to such involvement.

The approach varies greatly according to local specifics and the perception of the problem. While some jurisdictions in the United States continue to emphasize law enforcement, many are trying to balance public safety with programs that address the underlying causes of gang involvement, such as poverty, lack of opportunity, and family challenges.

In fact, interventions used include community mobilization, involving local citizens, including former gang members, community groups and agencies, and coordination of programs and staff functions within and across agencies. Opportunities are also sought: development of various specific education, training and employment programs aimed at the young people involved.

There is no shortage of widespread social intervention, involving youth-serving agencies, schools, grassroots groups, faith-based organizations, law enforcement and other youth/criminal organizations in “reaching out” to gang-involved youth and their families, connecting them with the conventional world and needed services.

Of course, this is accompanied by suppression tools, from formal and informal social control procedures (including close supervision and monitoring of gang-involved youth by youth/criminal system agencies) to school interventions[6].

The question posed with respect to the phenomenon in our country, then, concerns the ability of the current juvenile system to deal effectively with rather complex phenomena, which are not resolved exclusively in the deviant behavior of an individual boy, but often-and increasingly-must be framed and resolved within a broader social context.

Complexities that often lead the debate, especially in public opinion and in the superficial political response to some particularly serious incidents, to call for a lowering of the chargeable age and greater use of prison.

The evolution of juvenile trial principles

The punitive segregation of deviant minors (and the overcoming of equalization with adults in the case of criminal conduct) began as early as the 18th century, stemming from the separate institutionalization of poor minors. The Catholic Church previously dealt with vagrant, delinquent or abandoned youths, following a pedagogical-punitive approach. Throughout the history of Italian legislation, there have been different ways of handling juvenile justice. In 1703, Pope Clement XI founded the first specialized institutions for the reeducation of convicted juveniles.

In 1890 the Zanardelli Code came into force in the Kingdom of Italy, introducing imputability as early as age 9 and establishing reformatories for reeducation. Under Fascism, the Rocco Code raised the age of presumption of non-indictment from 9 to 14. This was followed by the establishment of Juvenile Courts in 1934.

In 1956, the Juvenile Procedural Code was introduced, marking a clear breakthrough in the field, and then arrived at the current structure with the 1988 reform (by Presidential Decree No. 448), thanks to which the juvenile criminal justice system was completely reformed, taking on its current founding characteristics, focusing on the responsibility of the juvenile and introducing the institution of suspended trial with probation.

At the international level, the recognition of children’s rights has spread following the evolution of the affirmation of human rights and slowly finding its own autonomous space, especially since the early 1900s, with specific rights and special protection requirements.

In 1913, the International Conference for the Protection of Children[7] was held in Brussels, and in 1919, the ILO (International Labor Organization) set the minimum age for children employed in the work of industries at 14 and banned night work for children under 18[8]. However, the child was first considered a subject of rights only with the “Declaration of the Rights of the Child,”[9] which was approved in 1924 in Geneva and by which the child assumed the dignity of a citizen.

Subsequently, the “Declaration of the Rights of the Child”[10], signed in New York in 1959, affirmed that the child, given his or her physical and intellectual immaturity, needed legal protection that was appropriate to his or her condition and that “the best interests of the child”-a primary interest for the whole of society-should be constantly borne in mind; it also enshrined the right to a free compulsory elementary education.

In the specifics of juvenile deviance and the administration of juvenile justice, the “Minimum Rules for the Administration of Juvenile Justice” (also referred to as the ‘Beijing Rules’) are of fundamental importance[11], approved by the 6th UN Congress in 1985, which are the international source from which most modern juvenile procedure codes have been inspired. Our Presidential Decree no. 448 of 1988 embraced the most innovative principles of these rules.

Various application models have been inspired by this evolution of the juvenile justice system. Some of these are still considered a staple for scholars around the world.

The most innovative model, an alternative to institutionalization, is precisely the so-called “probation” system, which was first introduced in England in 1907 and later spread throughout the world. It consists of a form of suspended sentence, provided that the person does not commit any other crimes during the period of the measure, under the supervision of a “probation officer,” who monitors and supports the juvenile. In aggiunta il servizio “Aftercare”[12]si prende cura dei minori prima, durante e dopo l’esecuzione della condanna, allo scopo di favorire la riabilitazione e la risocializzazione dei ragazzi.

At the community level, Recommendation no. 87/20 of the Council of Europe, concerning social responses to juvenile delinquency, listed education and social reintegration as the goals of juvenile justice, and reiterated that prison sentences should be thelast resort, to which “sentences suitable for juveniles” should be preferred.

With the 1989 “Convention on the Rights of the Child.”[13], then, the UN intervened to protect children under the age of 18. On juvenile justice, it stipulates that neither capital punishment nor life imprisonment should be applicable to juveniles, and again advocates the need to use deprivation of liberty only as a last resort when nothing else can be done. In addition, juveniles deprived of their liberty must receive treatment appropriate to their status as developmental agè subjects, such as maintaining contact with the family, while the purpose of juvenile justice must be the education of the juvenile aimed at the promotion of the juvenile’s person.

In 1990, the General Assembly of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Delinquents approved two key documents: the “Riyadh Guiding Principles on the Prevention of Juvenile Delinquency” and the “United Nations Minimum Rules for the Protection of Juveniles Deprived of their Liberty.”[14].

In the “Guiding Principles,” the need for all of society to strive for the harmonious development of childhood and adolescence is affirmed, as the prevention of juvenile delinquency is essential to the prevention of delinquency in general. Regarding procedure, it is recommended that governments pass laws that protect minors, taking into account their specific condition, and avoid harsh and degrading means of correction.

Even in the “Minimum Rules,” it is stated that deprivation of liberty for juveniles should be a last resort, applied only in exceptional cases, and that juvenile justice should promote the physical and moral well-being of juveniles.

In particular, Art. 40 of the U.N. Convention on the Rights of the Child (ratified by Italy through Law 176 of 1991) contains the guiding principles for the application and interpretation of the juvenile criminal trial discipline, enshrining “the right of the juvenile suspected, accused or found guilty of having committed a crime to be treated in such a way as to foster his or her sense of dignity and personal worth, to reinforce his or her respect for human rights and fundamental freedoms, and to take into account his or her age as well as the need to facilitate his or her reintegration into society and to enable him or her to play a constructive role in it“.

Thus, they have taken their place in our juvenile penal system:

  • The purpose of recovery through reeducation and social reintegration;
  • the “principle of adequacy” (Art. 9 Presidential Decree 448/1988) according to which the criminal process must adapt “to the personality of the child and his educational needs,” for the realization of which the work of the Social Servants and interdisciplinary work between all operators is fundamental;
  • the “principle of minimum offensiveness,” which aims to protect juveniles from the risks that may arise to their still-forming personalities due to early entry into the criminal justice circuit. Entry which should therefore be avoided wherever possible, favoring the closure of the process and the fastest possible exit of the juvenile from the criminal circuit;
  • destigmatization” (Art. 13), aimed at stemming as much as possible the harmful repercussions that can affect the child even from the mere news of being subjected to judicial proceedings, through maximum protection of confidentiality and anonymity with respect to any outside parties.
  • the “residuality of detention“, that is, the conception of all criminal intervention with regard to juveniles, and a fortiori the measure of detention, as extrema ratio. Thus, detention is justified only in cases of serious risk to social defense, and only in the absence of alternative measures that could lead to the same protection. For this very reason, new alternative measures to prison custody have been devised, which have a greater empowering value with less coercive impact;
  • The “self-selectivity principle” of the juvenile criminal process, which makes the juvenile’s educational experiences take precedence over the process itself, based on the investigation of each juvenile’s unique and individual personal condition, through forms of self-restraint and even closure of the process itself.

In deference to these principles, various institutions have been introduced, the basis of which is always the assessment of the child’s personality, such as judicial pardon or suspension of trial with probation.

Rivolgendo uno sguardo in Europa, invece, in Francia sin dal 1945 ha luogo la c.d. “education surveillée”, con cui si mira a coinvolgere la famiglia nel processo educativo del minore autore di reato, cercando quanto più possibile di mantenere il minore nel suo ambiente[15].

In the 1980s, alternative sanctions, called ‘work-projects and training-projects,’ were developed in the Netherlands, as in other Northern European countries, for the purpose of empowering and socializing minors, who must participate in work and training projects, supervised by a coordinator[16].

These systems operate, however, only after the juvenile has entered the criminal justice system and received a sanction. Un sistema di misure alternative che, invece, intervengono ancor prima dell’ingresso del minore nel sistema giustizia (o durante le prime fasi del processo) è nato negli Stati Uniti e si indica con il termine inglese “diversion”[17]. It is based on the discretion of the judge, who bases his decisions on the criterion of expediency instead of formal legal criteria.

The Italian juvenile trial: the interventions of the Constitutional Court

In the development of juvenile justice, the Constitutional Court has played a central role. In fact, the Court’s rulings have adapted the standards to the specific needs of juvenile justice, inspiring their interpretation by Article 27, third paragraph[18] and 31, second paragraph[19] of the Constitution. Moreover, by lending authority to the demands of much of the doctrine in this area, they constituted a fundamental point of departure toward the 1988 reform of the juvenile criminal justice process.

As early as the 1960s, the Constitutional Court upheld the need for the specificity of juvenile justice, to be considered an autonomous sector from that provided for adults and aimed primarily at reeducation. In ruling no. 25 of 1964[20], in particular, in deference to Art. 31, second paragraph of the Constitution, established that “juvenile justice has a special structure in that it is directed specifically to the pursuit of the most suitable forms for the reeducation of juveniles.”

Later, ruling no. 49 of 1973[21] pointed out the existence of a “peculiar interest-duty of the state in the recovery of the child,” to which the realization or non-realization of the punitive claim must be subordinated. This was followed by no. 222 of 1983 placed “protection of minors” among the constitutionally protected interests; and the Juvenile Court among the institutions “whose development and operation the Republic must foster thus fulfilling the constitutional precept committing it to the protection of youth.”

Judgment no. 16 of 1981[22], on the other hand, included the provision of the exception to the publicity of the hearing among the means prepared by the legal system for the achievement of the purpose of protecting minors, considering that the publicity of facts may result in negative consequences to the spiritual development and material life of the minor.

According to the Constitutional Court, the principle expressed in the second paragraph of Art. 31 of the Constitution requires the adoption of a juvenile justice system based on judge specialization and the goal of juvenile recovery, which must be pursued “by means of his reeducation and social reintegration, in harmony with the goal pointed out in Paragraph 3 of Article 27 of the Constitution, as well as by Article 14(4) of the International Covenant on Civil and Political Rights (adopted in New York on December 19, 1966 and whose ratification and execution was arranged by Law No. 881 of October 25, 1977).”

The reference to the principle of minimum offensiveness, which constituted one of the fundamental principles of the new juvenile criminal trial in 1988, was made by Judgment No. 206 of 1987[23], which pointed out that the purpose of juvenile justice must be the recovery of the deviant juvenile through his reeducation and social reintegration; this purpose can also be pursued through the mitigation of the offensiveness̀ of the process.

Thus, the principle that the child is a subject to be protected as such and the state is bound by this obligation even if the child has committed a crime has been strongly affirmed. Hence, an interest-duty was configured in the recovery and reeducation of the juvenile itself, to be pursued through the juvenile courts.

In this way, the juvenile criminal trial has become an opportunity for the juvenile’s social recovery, rather than an affirmation of the state’s punitive claim. And from the indication of the need for individualized prognoses for the juvenile’s recovery, emerges the position of centrality in the process assigned by the Court to the juvenile defendant. This is because in relation to minors the re-educational principle takes on a very special meaning and importance, as their educational process is not complete, but is evolving, as is their personalitỳ. The entire juvenile criminal justice system is, therefore, marked almost exclusively by reeducation, which is considered an interest-duty of the state, and to which the punitive claim itself is subordinate, as is also evident from the aforementioned ruling no. 49 of 1973[24].

Presidential Decree 448 of 1988 itself explicitly states that the juvenile criminal process “must not interrupt ongoing educational processes” and therefore regulates interventions aimed at not hindering the unfolding of the educational-evolutionary-relational process, to prevent its interruption from destabilizing a personality in the process of structuring.

Thus in the juvenile criminal trial we go beyond the reeducational function of punishment provided for in the third paragraph of Art. 27 of the Constitution, in that the purpose of social defense is subordinate to the main purpose of educating the child, as for the legislature, prevention would implement greater social defense.

The juvenile judge: the role of honorary components

In the juvenile justice system, the most critical point is a lack of judge’s third party status in certain evaluations, a state that can undermine its necessary impartiality at the root[25]. In fact, in the Juvenile Courts, the typical decision-making functions of the judiciary are commingled with and often outclassed by the social welfare functions, which, while necessarily present, should, however, be separate and distinct in a “due process” including juvenile. In fact, for the Judge to be third and impartial, it is necessary that his role in the process be limited to the definition of the case in accordance with the existing and applicable regulations and not to be predominantly entrusted with the management of the situation submitted to his decision-making power from a social welfare perspective, resulting in the exercise of his powers in a non-decisional function.

This dangerous imbalance, on the other hand, is attested to and clearly represented by the origin of practically all honorary judges (i.e., non-tobacco components) from social services; an “adjudicative” presence that is not only anomalous, but in far greater numbers than that of the togal judges, and who return to the territorial social service of origin at the expiration of their judicial term.

The juvenile judge’s “subservience” to social workers, already so ingrained in the adjudicating panel itself, results in a further imbalance-almost a complete delegation-in favor of social services’ assessment of the situation. Such “information” is gathered outside any real adversarial process with the parties to the case, but to which alone reference is made in the exercise of the adjudicative function. Thus, the lack of third party status and recognition of equal importance to investigations and technical assessments brought by the parties, which necessarily succumb in this context before those of the social welfare services, also has repercussions on the level of evidentiary investigation. The latter are basically evaluated by the panel of judges as the only reliable instrument, as they are considered their own direct externalization, while also excluding the potential presence of party technicians in this context.

According to some, the only remedy would be to eliminate the anomaly of non-tobacco judges from the judging panel, thereby restoring competence and third party status to the juvenile judge and his or her functions, which should remain confined to the decision-making perimeter within the legal framework of reference.

Criminal execution in juvenile proceedings: the difficulties of reeducation

The failure to adopt a specific penitentiary order on the subject of criminal execution in juvenile proceedings is currently in serious conflict with the dictates of Articles 31, paragraph two and 27 paragraph three of the Constitution, especially in light of the substantial divergence of the purposes of criminal proceedings against juveniles from those of adults and given the specificity of the juvenile’s as yet unstructured and defined personality and identity[26].

In fact, the purposes of the juvenile criminal justice system aim to be an instrument of enhanced education, with the purpose of implementing a juvenile’s recovery, linking the sanction to the need to bring about a positive development of the juvenile’s personality. In contrast, the structure of the prison system for adults clashes with the purposes and institutions dictated for juveniles.

Fundamental to the training and education of the juvenile offender is-or should be-school.

Unfortunately, its role in juvenile correctional institutions loses its educational value because it often places the child in a heterogeneous and multiproblem group of minors. The classes are attended by children with enormous learning and attention difficulties, frequently coming from repeated failures.

Statistics show how recidivism is more frequent for juveniles released from IPMs (even where they have followed a positive path of study, work and contact with outside society during detention) than for juveniles undergoing alternative measures to detention, confirming their greater effectiveness in the education and resocialization of juvenile offenders[27].

The position of residential communities is also not simple[28], increasingly considered the main tool of extra-curricular criminal execution deputed to the care, treatment and change of the juvenile offender. To achieve this function, the community stands at the border between the normality of the outside world and the confinement of detention, and the coordinators and managers of facilities that house juveniles under criminal court order juggle the needs for containment and control of the juvenile guests of the facilities and the need to create for them spaces for relational experimentation and empowerment that are functional to their reeducation. This creates an obvious and equivocal ambivalence, since the procedural rules define community placement as a precautionary measure (thus characterizing it as a penal facility deputed to execute a measure limiting personal freedom, with a consequent intrinsic afflictiveness) but on the other hand allow the judge to authorize the minor to attend study, work or otherwise educational activities.

Also with a view to simplifying management and abating the difficulties and risks inherent in any removal from the structure of the juvenile placed in the community, outings and contacts of the children with the outside are penalized and avoided as much as possible. As a result, the afflictive dimension of the coercion of permanence is amplified as well as the community pedagogical self-referentiality itself; thus, the pedagogical value of building a relational life appropriate to the developmental needs and chronological age of the placed minors is put to nothing. These, in fact, no longer have any protected space for empowerment, to be managed independently, that can positively affect the treatment path, with the effect of exponentially increasing the reactions of conflict and opposition. Boys thus direct their resources toward a harmful exercise of power assertion and increase centrifugal drives toward escapism and transgression.

Moreover, not “training” the minor in a positive contact with the outside world through a return to a protected context where he can elaborate and reinforce the difficulties gradually encountered, and not building a valid alliance with the family (which can thus accompany and support him when he leaves the community path), mean that the period in the community becomes a parenthesis separated from the context of life, from that outside world to which the boy must return and with which he will not be able, therefore, to build a pedagogically correct relationship.

Thus, communities are often reduced to places without an effective focus on the path, but only on the present, given the incompatibility of the time allowed (a few months) with even a medium-term evolutionary planning. Moreover, the simultaneous presence, both in IPMs and communities, of minors, young adults, foreigners (moreover, without cultural and linguistic mediation), and adolescents with objective pathologies, almost inevitably leads to the failure of a model built around an individual who nevertheless finds himself immersed in a context that thwarts the very foundations of the educational development project that should enable his positive re-entry into the socio-familial fabric of belonging.

The unequal treatment of foreign minors

It should also be considered that the presence of foreign minors has gradually increased in recent years. In their case, however, for the same offense, custodial pre-trial measures (especially prison) are applied much more frequently, they remain there for longer and are more often sanctioned with a sentence, while very rarely they are recipients of measures in the housing community, in the family and at large.

Suffice it to consider how the institution of probation, the application of which has grown to affect about one-fifth of total proceedings, is accessed by 82 percent Italian boys and only 18 percent foreigners[29].

The detention measure, in these cases, is not justified by the failure of the application of alternative measures to detention, but by their objective inapplicability, since they are often irregular foreign minors in the territory and unaccompanied, usually lacking references and stable socio-familial contexts. In addition, the culture of origin, values, and language constitute often insurmountable difficulties for Italian practitioners, who are thus unable to activate interventions and develop educational projects for them. Already, just the reconstruction of the child’s family and personal history, which is placed at the basis of all decisions and judgments about the child, a history that finds its main sources in the narratives of family members, teachers and any social workers, is virtually impossible for the unaccompanied alien child to recover. This results in serious discrimination between Italian and foreign juveniles with respect to the possibility of taking advantage of paths that are not only less afflictive but, above all, more effective in the recovery and reeducation of the juvenile offender.

Thus, although the Supreme Court has affirmed the principle that alternative measures to detention can also be applied to the non-EU foreigner who entered the state illegally and without a residence permit[30], however, in juvenile proceedings it is objectively difficult, if not impossible, to ensure the educational purposes of punishment for foreign minors with the use of the special institutions provided, as it is not possible to involve the often nonexistent or clandestine family environment. At the same time, community placement is also often impractical or ineffective, given also the unpreparedness of facilities to handle ethnic diversity.

The difficulty of juvenile justice

In the face of the above, it is clear how a system that is very unbalanced-though rightly so-may find itself in crisis in the face of a juvenile crime phenomenon that is physiologically (and statistically) greatly influenced by the way in which juveniles at risk of committing crimes interact with each other.

However, attention should be turned to the dangerous mechanism that is being triggered in the reeducational/sanctioned treatment of young people who come into contact with the juvenile process. In fact, on the one hand, the most fragile and higher-risk individuals – such as foreigners or Italian youths with little or no family support – are more likely to fail re-education paths or not access them at all; on the other hand, the increase in defendants from favorable socio-economic backgrounds risks making instruments such as probation little more than a weak rebuke to the individual (even in the face of serious crimes), without actually removing him or her from the social dynamics that may have contributed to the initiation of deviant behavior.

Moreover, the priority pursuit of the quickest possible exit from the justice system does not adequately confront another shortcoming of our system: the lack of accountability in the criminal justice system for damages caused to the victim of the crime. Insufficient in this regard appears to be the use of mediation and restorative justice pathways, which are presented, instead, as useful tools to enable the juvenile to actively confront the consequences of his or her antisocial conduct.

Add to this the fact that the staffing levels of the USSMs, which are supposed to ensure the careful evaluation of pathways, are often portrayed as totally insufficient[31] To cope with the massive workload (17,341 minors and young adults in 2022[32]), a situation bound to worsen with the further strengthening of alternative rites following the Cartabia Reform[33].

In any case, data regarding recidivism rates are certainly comforting, whereby juveniles after probation return to commit crimes in a much lower percentage (22%) than those who have been convicted instead (63%)[34]. Although this figure is affected, as highlighted above, by the reference “statistical sample.”

Despite this encouraging element, these juvenile justice tools cannot be the only method of dealing with the difficulties of a youth population that seems to have changed in the ways they approach criminal behavior-no longer exclusively (or predominantly) as a result of socioeconomic hardship or marginalized conditions.

Rethinking intervention in the approach to juvenile deviance, on the contrary, should be the result of a choral sharing of contributions and experiences of the family (where possible), the school and all institutions in the area.

In fact, regardless of whether one prefers a response of a more reeducational or punitive nature, it seems necessary to put back at the center of the debate on juvenile crime the positive intervention of all proximate figures who can have a significant impact on minors, from a more preventive and participatory perspective, rather than seeking ever broader instruments of “reeducational pardonism” that often conceal alibis that deresponsibilize adults and institutions with regard to minors.

Avv. Giada Caprini
Avv. Marco Della Bruna

 

References

[1] E. U. Savona, M. Dugato, E. Villa, Youth Gangs in Italy., Transcrime Research in Brief – Italy Series no. 3, October 2022.

[2] Y. Partial, Juvenile group crime in the international landscape. Perspectives on adapting current criminal law to neuroscientific findings, Electronic journal of the European Documentation Center of Kore University of Enna.

[3] B. B. Brown, M. J. Lohr, E. L. McClenahan, Early Adolescents’ Perception of Peer Pressure., Journal of Early Adolescents, 1986 Vol 6 No. 2 pp. 139-154.

[4] V. Pirrò, L. Muglia, M. Rupil, The crisis of the family and new forms of juvenile deviance: beyond the mask., Justice Together, April 21, 2020.

[5] M. Warr, Companions in Crime. The Social Aspects Criminal Conduct, Cambridge University Press, 2002.

[6] https://nationalgangcenter.ojp.gov/spt/Programs/53

[7] A. De Giovanni, Genesis of the International Convention on the Rights of the Child (1989) and its most recent legislative developments., Salento University Publishing.

[8] The ILO and child labor., AIDOS.

[9] Declaration of the Rights of the Child (Geneva Declaration 1924)..

[10] Declaration of the Rights of the Child (New York Declaration 1959)..

[11] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)..

[12] Young offender aftercare., College of Policing.

[13] Convention on the Rights of the Child (New York, November 20, 1989).

[14] United Nations Guidelines for the Prevention of Juvenile Delinquency: The Riyadh guidelines.

[15] J. Bourquin, M. Gardet, Éducation surveillée, Enfants en Justice.

[16] P. van der Laan, Alternative Sanctions for Juveniles in the Netherlands., NCJRS Virtual Library, U.S. Department of Justice, 1993.

[17] Diversion programs., Youth.gov.

[18]Punishments cannot consist of treatment contrary to the sense of humanity and must aim at the re-education of the convicted person.”

[19]The Republic shall facilitate with economic measures and other provisions the formation of the family and the fulfillment of related tasks, with special regard to large families.

It protects motherhood, childhood and youth by fostering the necessary institutions for this purpose.”

[20] https://giurcost.org/decisioni/1964/0025s-64.html

[21] https://giurcost.org/decisioni/1973/0049s-73.html

[22] https://giurcost.org/decisioni/1981/0016s-81.html

[23] https://giurcost.org/decisioni/1987/0206s-87.html

[24] https://giurcost.org/decisioni/1973/0049s-73.html

[25] Gianfranco Dosi: My views on… Angels and demons: the responsibilities of juvenile justice., Lexicon of Family Law.

[26] Criminal execution in juvenile proceedings., States General of Criminal Execution, Table 14.

[27] Recidivism in the criminal pathways of juvenile offenders.o, Series “I NUMERI pensati,” edited by Isabella Mastropasqua, Maria Maddalena Leogrande, Concetto Zanghi, Maria Stefania Totaro, Luca Pieroni, Alessio Gili, Gangemi Editore, Rome – May 2013.

[28] A. Scandurra, Foster communities for minors and probation., Ragazzi Dentro, February 2020.

[29] The suspension of trial and placing on probation, (Article 28 Presidential Decree 448/88). Statistical data Year 2021, Ministry of Justice.

[30] Cass. SS.UU. 27.04.2006 n. 14500.

[31] New DGMC staffing plans., FP CGIL, UIL PA, CISL FP, February 28, 2023.

[32] Juveniles and young adults in the care of Juvenile Services. Statistical analysis of data, Ministry of Justice, 2022.

[33] D. Di Cecca, Alternative rites in the juvenile criminal trial and the “Cartabia Reform”., Boys Inside.

[34] Recidivism in the criminal pathways of juvenile offenderso, cit.

Crimes against the Public Administration, anti-corruption legislation and control systems in the EU and Italy“: the lectures of Prof. Avv. Roberto De Vita ‘s class for the 33rd Qualification Course “Economic Financial Investigator” at the Guardia di Finanza School of Economic and Financial Police begin today.

 

crimes against the public administration

abuse of office

trafficking in unlawful influence

The Supreme Court has qualified comic strips and illustrations of erotic tales depicting minors as child pornography, holding that it must include in this notion anything that is likely to give the viewer the idea that the object of the pornographic representation is a minor [1].

The case in point

The appellant had been convicted by the Trieste Court of Appeals for possession of child pornography [2], which included comic strips and illustrations of erotic tales reproducing minors engaged in incestuous acts or other sexual activities.

With respect to these images, the defendant’s defense had complained of adherence to a notion of virtual pornography that would fall outside the perimeter of Art. 600-quater.1 of the Criminal Code, moreover not disputed in the present case, in which the images would not have been suitable to deem the situations depicted in them as real.

In fact, that standard defines virtual images as those “made by graphic processing techniques not associated in whole or in part with real situations, whose quality of representation makes non-real situations appear as real.”

Hence, in the view of the defense, the subjective element would have been absent in any case, as it could not require the defendant to make a complex interpretative exegesis on the scope of application of the aforementioned criminal precept.

The protected legal asset

The Supreme Court has already ruled in a similar vein in the past, adhering to a broad interpretation in identifying the legal asset protected by the child pornography regulations, also in light of the international and conventional legal framework [3].

In fact, the court of legitimacy had held that the protected good could not be limited to the sexual freedom of a person under the age concretely represented (and qualifying as a person aggrieved), but rather that boys and/or girls should be considered as a person aggrieved “To be understood as a category of persons who are the recipients of enhanced protection of sexual intimacy, including respect for the different stages of their physical and psychological development, to be understood as including the development of their sexuality[4].

According to this reading, the legislator would have provided enhanced protection for the intangibility and development of the personality of minors, punishing all conduct that, by representing it, expresses the possibility of the minor’s involvement in sexual activities for which minors are unable to give valid consent, taking into account their degree of psychological development and relational maturity.

On this point, of great importance is the observation of the Budapest Convention’s Explanatory Report on Cybercrime [5], which pointed out that “realistic” images of minors engaged in sexual activities also present the risk of being used to seduce minor subjects or invite them to participate in sexual activities.

The court’s decision

In the present case, the Supreme Court concurred with the guideline set forth, which was also adhered to by the lower court judjes in convicting the defendant; in particular, the Court of Appeals of Trieste held that the notion of child pornography included “drawings, paintings, and anything else that is likely to give the viewer the idea that the object of the pornographic depiction is a minor“, ruling out limiting it to just “pornographic physicality.”

Therefore, the Supreme Court held that both comic books and illustrations of an erotic tale depicting minors engaged in incestuous acts or other sexual activities were correct in qualifying pornographic material.

The consolidation of the aforementioned orientation has significant repercussions not only for the pornographic comic book industry (the so-called Japanese hentai and others), but also and especially with respect to the proliferation of generative artificial intelligence systems that are invading all pornographic markets, including that of images depicting minors. The latter, in particular, represent a higher level of risk than comic books (both print and digital), due to the greater ease of access to the material’s production tools and the high difficulty of controlling them.

 

 

References

[1] Cass. Sez. III, n. 47187, 24.11.2023.

[2] Article 600c of the Criminal Code.

[3] Optional Protocol to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography, done at New York on September 6, 2000, and ratified by Italy by L. March 11, 2002, no. 46; Council of Europe Convention for the Protection of Children against Sexual Exploitation and Sexual Abuse, opened for signature in Lanzarote on October 25, 2007, ratified by Italy with L. 01.10.2012 no. 172; Council of the European Union Framework Decision no. 2004/68/JHA, on combating the sexual exploitation of children and child pornography; Council of Europe Convention on Cybercrime, done at Budapest, Nov. 23, 2001, ratified by Italy through L. March 18, 2008, no. 48.

[4] Cass. Sez. III, n. 22265, 09.05.2017.

[5] Explanatory Report to the Convention on Cybercrime, p. 16.