Maltreatment in the family: configurability of the crime.
Provided and point by art. 572 of the criminal code of rite, the crime of mistreatment in the family aims to protect the health and psycho-physical integrity of subjects belonging to a family or para-family context, as reformed by the 2012 legislative novel.
This criminal offense occurs whenever a person makes himself the author of violent, aggressive, intimidating and harassing behavior towards a person belonging to his family or in any case with his partner, a person subject to his responsibility or who has been entrusted to him for reasons of education, instruction, care, supervision or custody or for the exercise of a profession or an art.
In other words, the crime of domestic abuse occurs only when the existence of necessarily habitual conduct is ascertained , resulting in multiple acts that are harmful to the physical or moral integrity or to the freedom or dignity of another individual.
It is immediately evident that we do not consider family people, as was the case in the past, only the spouse, relatives, relatives, adoptees and adopters.
Following the 2012 reform, in fact, this concept was extended to include cohabiting partners , all those related to the abuser by blood, including domestic workers if they live with him or her; as established by the Court of Cassation (see Cass. ruling no. 31121/2014), "the crime of domestic abuse pursuant to art. 572 of the Criminal Code exists whenever the relationship is of such intensity and characteristics as to generate a stable relationship of trust and solidarity."
Coming to the scope of the term mistreatment, according to the majority of legal doctrine and jurisprudence, a person can be classified as an "abuser" if they carry out acts of commission, but also of omission, domineering, harassing, oppressive, humiliating, repeated over time, such as to cause the victim appreciable physical, moral, or economic suffering to the point of compromising the full and satisfactory development of their personality.
The notion therefore includes both physical aggressions in the strict sense (beatings / injuries), as well as acts of harassment, contempt, abuse that significantly affect the individuality of the abused person suffering moral and / or physical suffering.
It is interesting to draw attention to the Court of Cassation's ruling no. 36503/2011, which upheld the conviction for domestic abuse against a mother and grandfather who, through "excessive protection and attention," had effectively prevented the harmonious and peaceful psychological and physical development of their child/grandchild.
It is precisely from the analysis of the jurisprudence of legitimacy that we can easily deduce the characteristics of the crime of mistreatment in the family:
First of all, it is a specific crime , as it cannot be committed by anyone, but only by those who are in a certain position with respect to the victim.
It is a habitual crime , as the conduct carried out by the active subject may be irrelevant if considered individually, but may then acquire a different depth and gravity if continued and prolonged over time. "The violent attitudes, which have characterised the arguments between the spouses, if not suitable to configure the more serious crime of mistreatment because they lack continuity and systematicity of the action, can at most constitute other types of crime, which are also prosecutable upon complaint by the party" (see Court of Cassation , sixth criminal section, in sentence no. 40936/2017)
Finally, to configure domestic abuse, generic intent is required , that is, the will to cause the victim, through one's own behavior, to suffer a series of negative consequences.
The crime in question, mind you, absorbs the offenses of injury, beatings, threats, minor or very slight injuries, when it is culpable. If the injuries are voluntary, the two crimes concur. Likewise, serious or very serious injuries or death if voluntary are not absorbed, if instead they were the consequence not wanted by the agent, the aggravating factors described below will be applied.
The penalty
The basic penalty for the crime of domestic abuse is three to seven years of imprisonment (as amended by Law no. 69 of 19 July 2019).
This penalty is aggravated:
- The penalty is increased up to half if the offense is committed in the presence or to the detriment of a minor person, a pregnant woman or a person with a disability as defined pursuant to art. 3 of Law 5 of 1992 February 10, or if the fact is committed with weapons.
- if a serious personal injury results from the event, imprisonment of between four and nine years is envisaged
- if from the fact a serious personal injury results, imprisonment is foreseen from seven to fifteen years
- if death results from the fact, imprisonment is foreseen for twelve to twenty-four years.
The eighteen-year-old minor who witnesses the mistreatment is considered an offender.
Mind you: the crime of mistreatment in the family can be prosecuted ex officio or at the lawsuit of the offended person.
It seems necessary to contact your trusted lawyer, specialized in the criminal, juvenile penal or family law sector, in order to make a specific, extremely technical and detailed defense aimed at correctly specifying and substantiating the facts of the case.
Law No. 69 of July 19, 2019 (containing "amendments to the Criminal Code, the Code of Criminal Procedure, and other provisions regarding the protection of victims of domestic and gender-based violence") had the great merit of providing expedited formulas for initiating criminal proceedings and for the adoption of precautionary measures aimed at protecting the injured party: the so-called red code.
In fact, once the acquired crime news has been acquired, the Police Officer immediately reports to the Public Prosecutor, also in oral form.
Furthermore, when proceeding with the above-mentioned crimes, the Public Prosecutor must, within three days of the registration of the crime report, obtain further information from the injured party or from the person who reported the incident and, if necessary, take the urgent precautionary measures he deems most protective of the victim's interests.
This term can be extended only in the presence of essential protection requirements for minor subjects or for the confidentiality of investigations.
With regard to the prescription of the crime, following the 2012 news, it turns, as we have already had occasion to underline, to tighten the penalties and widen the possible "victims" of the crime, in the simple hypothesis, referred to in the first paragraph of art. . 572, the offense is prescribed in 12 years; on the other hand, they will be 18 in the case of serious injuries and 30 in the event of very serious injuries. In the event of death, resulting from mistreatment, the prescription will take effect from the 48th year.
Some judgments of the Court of Cassation regarding ill-treatment:
The origin of the crime of domestic abuse is further complicated by a series of acts that are harmful to the physical integrity, freedom, or dignity of the victim, resulting in systematic, oppressive behavior that makes cohabitation particularly painful. The psychological element must then materialize in the perpetrator's desire to debase and overwhelm the victim, unifying the individual episodes of aggression to the latter's moral and material spheres. Given the habitual nature of the crime, it is irrelevant whether, during the period in question, the perpetrator's behavior exhibits periods of normality and agreement with the victim. (Cassation Court No. 761/2019)
Supreme Court case law holds, with a consolidated interpretative principle, that the crime of domestic abuse can be constituted even against a person who does not or no longer lives with the perpetrator, when the perpetrator and the victim are linked by ties arising from marriage or parentage. This is because cohabitation is not a prerequisite for the crime and the bonds of mutual respect remain intact even after legal separation . This is especially true when there is a need to fulfill obligations of cooperation in the maintenance, education, instruction, and moral support of minor children. (Cassation Court No. 50304/2018)
To constitute the crime under Article 572 of the Criminal Code, as numerous rulings highlight, ongoing "harassment" behavior is required. While it may be interspersed with periods of "quiet," it must constitute a source of ongoing discomfort and be incompatible with normal living conditions. Otherwise, the habitual nature of the behavior , implicit in the legal framework of the offense, must be excluded. Individual acts that harm or endanger the personal safety, freedom, or honor of a family member retain their own classification as crimes against the person. (Cassation Court No. 27088/2017)
The crime of ill-treatment is configurable even if with the victim of the abuse there is a family relationship of mere fact, which can be inferred, even in the absence of a stable coexistence, from the implementation of a life project based on mutual solidarity and assistance. (Criminal Cassation, Section VI, sentence n.22915 of May 27, 2013)
The parent who takes overprotective behaviors that affect the psychophysical development of the child integrates the crime of mistreatment in the family, regardless of whether the minor has perceived such behaviors as abuse or has consented to it. (Criminal Cassation Section VI sentence no. 36503 of 10 October 2011)
For the integration of the crime of mistreatment in the family, in particular to the detriment of his wife, the religious belief of the author of the conduct is not relevant, since it cannot be considered that adherence to a creed, which does not sanction gender equality in the relationship marital, justify the mistreatment of his wife. (Criminal Cassation, Section VI sentence 28553 of 13 July 2009)
Integrates the crime of mistreatment in the family as per art. 572 of the Criminal Code, the repeated exposure of the minor to erotic contexts inadequate to his age, so as to habitually create a relational atmosphere prejudicial to his balanced psychic evolution. (Criminal Cassation, Section VI sentence n.38962 of 22 October 2007)
It is preferable to file a criminal complaint as soon as possible through a trusted lawyer with expertise in the field of family law and criminal law; this is to set in motion the protections that the law provides to victims.
Cecatiello Law Firm advises its clients on the best management of criminal proceedings.
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