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Once again we have to talk about rape on account of the notorious events which, sadly, have recently taken place, about which the media have, unfortunately, failed to properly informed the general public, managing only to inculcate distorted and mistaken perceptions thereof.

Once again precautionary measures are confused with the sentencing of defendants. The media described as scandalous judgments handed down by the Italian Supreme Court on account of the supposedly mistaken values to which such judgments supposedly gives rise, only to then completely forget about such judgments.

The media have, however, once again forgotten that there is a distinction to be made between the interpretation of the law and legislative policy.

Briefly, the Italian Supreme Court overturned, with its judgment handed down on February 2 last, the order issued by the Rome Re-examination Court that had confirmed a precautionary custodial measure for two young defendants accused of gang rape.

The Rome Re-examination Court had held that it could not substitute the custodial measure with a less serious precautionary measure on account of the prohibition imposed by the so-called  “Safety Decree ” approved by Law-Decree no. 11 dated February 23, 2009 (which had been converted by Law no. 38 dated April 23, 2009).

The aforementioned Decree, amended article 275, paragraph 3, sentences two and three, of the Italian Code of Criminal Procedure (c.p.p.), providing that – in line with the provisions governing mafia crimes – precautionary custodial measures had to be applied automatically to those accused of having committed offences concerning child prostitution, child pornography, tourist activities aimed at exploiting child prostitution, rape, the sexual assault of children and gang rape.

The impossibility of graduating precautionary measures meant that no assessment of the specific case could be made, thus making it impossible for  judges to assess whether other less severe precautionary measures (such as house arrest) could be applied.

In relation thereto, the Italian Constitutional Court had, with the well-known judgment no. 265 handed down on July 21, 2010, declared article 275 of the Italian Criminal Code to be unconstitutional to the extent that the latter provided that – where there was weighty proof of serious offences against the person (including rape) having been committed – custodial measures should be applied (unless evidence was acquired to the effect that there was no need for such precautionary measure to be applied).

The Italian Supreme Court, in handing down judgment on January 20 2012, deemed the interpretation given to such provision to be also applicable to the question of what precautionary measures should be applied to defendants accused of having committed serious offences sanctioned by article 609-octies of the Italian Criminal Code (c.p.) or having committed gang rape (in the light of the similarity of the essential features of such offence compared with other sexual offences, and namely those provided for under  articles 609-bis or 609-quater c.p.).

The Supreme Court looked at the policy behind the legislation on precautionary measures, holding that the criterion of the lesser sacrifice (on the basis of which the application of the various precautionary measures has to be graduated) meant that temporary custodial measures were to be adopted as a last resort.

The Supreme Court held, moreover, that, under Italian law, temporary precautionary measures could not be automatically be applied on a presumptive basis and judges had to be allowed to assess whether there were, in the case at hand, the necessary grounds for applying a given precautionary measure.

The Italian Constitutional Court ruled, in a startlingly clear manner, that precautionary measures cannot and must not be ordered solely with a view to addressing the social alarm caused by the proliferation of sexual violence offences.

As often happens, therefore, the only applicable remedy may be that of providing for substitute sentencing

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