Can sexual violence – punished by article 609 bis of the Italian Criminal Code – be committed over the phone?
In the case at hand, the defendant was accused of making telephone calls during the course of which he qualified himself as a gynecologist and urged the victims to masturbate themselves for medical purposes, photographing their genital areas and sending the results to him by e-mail.
Counsel for the defendant appealed to the Supreme Court, arguing, in particular, that the defendant had not committed any act of sexual violence in the light of the absence of any physical contact between the defendant and the alleged victims.
On this point, however, the Supreme Court judges recalled the dictum of Supreme Court judgment n. 11958/2011, which stated clearly that by inducing the victim to commit sexual acts upon herself, the defendant aimed to satisfy his sexual desires, thus committing the offense provided for under article 609-bis of the Italian Criminal Code (on the other hand, Supreme Court jjudgment no. 15464 of 12/02/2004 excluded that the offense of sexual violence had been committed by the defendant who had masturbated himself, since the latter had not invaded the sexual sphere of the victim).
The Supreme Court held that the offense of sexual assault is committed, instead, where the victim’s right of self-determination from a sexual point of view is impaired.
The Supreme Court held, therefore, that any invasive conduct that encroaches on the victim’s intimate sphere – with a view to gratifying the defendant – constitutes sexual violence