On August 28, the Court of Cassation filed judgment no. 33230 on revenge porn and stalking.
Revenge porn: The case
The appellant had been convicted of the offences of stalking and revenge porn, committed against a person bound to him by an extramarital relationship. The defendant, displeased with the victim’s decision to end the relationship, began to harass and repeatedly threaten her safety, insult her, and threaten to reveal everything to her two children and husband. He carried out this threat by sending offensive messages about the victim to her children, along with sexually explicit photos. As a result of this behaviour, the victim experienced severe anxiety and a drastic change in her lifestyle, which led to the breakdown of her marriage and the necessity for her to move in with her mother.
Appeal to the Court of Cassation
The employer filed an appeal to the Court of Cassation, putting forward several grounds for appeal. The most significant ones are: whether sending the photo to the children of the victim constitutes a form of dissemination, given that the defendant, in forwarding it, was certain that they would not further distribute it; whether the specific intent to cause harm to the victim is present; and whether the crime of stalking encompasses that of revenge porn, thus constituting a complex crime rather than two separate offenses. Specifically, the crime of stalking would include, in addition to threats or harassment, the crime of revenge porn, so that the offense of revenge porn would be entirely subsumed within the broader and more serious crime of stalking, representing one element of the series of persecutory acts carried out by the offender.
The criminal offence of revenge porn
With the crime of unlawful dissemination of sexually explicit images or videos, the penal code punishes anyone who, having received or otherwise acquired sexually explicit images or videos intended to remain private, sends, delivers, transfers, publishes, or distributes them without the consent of the individuals depicted, in order to cause them harm. The applicable penalty is imprisonment from one to six years and a fine ranging from €5,000 to €15,000.
Decision of the Supreme Court
The Supreme Court has clarified that any sending of sexually explicit images or videos to anyone, without the consent of the person depicted, constitutes a relevant act for the purpose of configuring the crime of revenge porn, provided the individual acquired the image or video in any way. The offence, in fact, is considered instantaneous and is committed at the moment the sexually explicit content is first sent, regardless of whether it is sent to family members of the victim who may, potentially, have an interest in not further disseminating the content.
Indeed, with the first sending, the dissemination has already occurred, as established by the incriminating provision. Regarding the subjective element of the offense, the Court specified that the specific intent is proven: it has been determined that the sending of the sexually explicit photo of the victim was carried out by the appellant without her consent, with the clear intent to cause her harm. This harm consisted of undermining her reputation by attacking her morality through insults and offenses directed also at her children and husband, informing them of the extramarital affair between her and the defendant. Furthermore, in this particular case, his actions were driven by the additional and characteristic motive of revenge porn, which was motivated by the desire for revenge against her and fueled by the intention to punish her for unilaterally deciding to end their relationship.
The concurrence of the offence of stalking and the offence of revenge porn
The Supreme Court specified that the comparison between abstract offenses makes it clear that we are dealing with the hypothesis of the concurrence of offences and not of a complex crime: the two offenses differ, first and foremost, in terms of the incriminated conduct. Stalking consists of threatening or harassing behaviours, while revenge porn involves the dissemination of sexually explicit images (without the requirement of violence or threat).
Secondly, the events differ: in stalking, the event consists of inducing the victim to experience anxiety, fear, or concern for their own safety or that of their relatives, or in forcing the victim to alter their life habits; these events are clearly not required for the configuration of revenge porn.
The legally protected interests are also different: revenge porn is characterized as a multi-offensive crime, affecting both the privacy of the victim and their sexual sphere.
As regards the exclusion of the hypothesis of the complex crime, it is then relevant to consider that, in order for the complex offence to be committed, the act must be provided for by the incriminating provision, which is assumed to configure a complex crime, as a necessary element of the relevant abstract offense. It is not relevant if it occurs in a specific case as an occasional method of executing the conduct. In the present case, the appeal claims that among the stalking behaviours was also that of revenge porn, but this is merely an occasional method of execution of the conduct and not a necessary element of the abstract offense.
Therefore, the Supreme Court has stated that the offence of stalking does not encompass the crime of revenge porn: the two offenses differ in terms of the incriminated conduct, the required events, and the protection of legal interests. Thus, they can both be committed even when the revenge porn actions affect the victim’s moral freedom.
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