I casi di violenza sessuale spesso implicano il concorso di più persone, che possono contribuire al reato in diversi modi e in diversa proporzione. Al di là del caso classico dello stupro di gruppo, in cui ogni membro del gruppo partecipa attivamente alla commissione del reato, vi sono diversi altri scenari in cui un soggetto terzo può avere un ruolo determinante nell’offesa senza necessariamente commettere atti che possano integrare la fattispecie di violenza sessuale per se (si pensi al caso di chi aiuta l’assalitore, o resta semplicemente ad assistere senza intervenire). Sia il diritto canadese che quello italiano rispondono a queste problematiche con norme simili ma allo stesso tempo diverse, rendendone interessante il confronto.
The commission of a sexual assault often involves the participation of multiple persons, who can contribute to the offence in many different ways and degrees. Apart from the classic scenario of a gang rape, where every member of the group takes an active part in assaulting the victim, there can be many other episodes where a third party participates without committing any sexual violence per se, rather aiding the assailant or simply watching the sexual assault being carried out without intervening. Both Canadian and Italian law address the problem with similar yet different provisions.
To begin with Canadian law, the relevant provisions in the Canadian Criminal Code are section 271, which criminalizes sexual assault; section 21, which defines participation to an offence in general; and section 272 (1)(d), which elevates the seriousness of the offence and provides for greater punishment when sexual assault is committed with the participation of more persons.
Interestingly, Canada’s Criminal Code has no specific definition of “sexual assault”. Instead, it defines assault in general and then provides for a specific punishment for “sexual assault”. Under section 271, “everyone who commits a sexual assault is guilty of: an indictable offence and is liable to imprisonment for a term of not more than 10 years (…); or an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months (…)”.
Now, in general terms, a person can be criminally liable as the principal actor or as a party acting together with the principal in committing an offence. Consequently, section 21 establishes that, in order to be criminally responsible for a certain act, a person should be either a principal, an aider or abettor, or should share a common intention to carry out an unlawful purpose. As for what culpability is concerned, the aim of the provision is to cancel any legal distinction between these four types of participation. The person would be equally liable in all of those circumstances. Consequently, it is not required to explicit whether the accused is charged as a principal or as a party.
More specifically, under section 21(1)(a), when more persons act together with the purpose to achieve the same offence, they are all committing that offence as co-principals or joint principal offenders. In this case, it is not necessary for the person to personally perform every act that makes up the offence. It is sufficient that the sum of the acts of all the joint perpetrators makes out the essential acts of the offence as part of a “common participation”. It is important to note that, in case of an assault, there is no need to prove the degree of participation of every party since the personal involvement would be “impractical and at times impossible” to define with precision.
On the other hand, section 21(1)(b) and (c) refer to aiding and abetting. While the former can be described as assisting or helping the principal in the offence, the latter means “encouraging, instigating, promoting or procuring” the commission of the crime. In order to charge the accused as an aider or abettor, the Crown is required to prove that the offence at stake was actually committed, that the accused committed some act capable of aiding or abetting the offence to be committed and, finally, that the accused was acting “for the purpose of aiding”.
Lastly, section 21(2) extends criminal responsibility for any incidental offence committed by one person to the other members of the group whenever it constituted a probable consequence of committing the original crime. To apply this provision, it must be proved that the parties had a common intention and agreed to carry out an unlawful purpose. In this case, evidence of actual assistance is not required.
Then, in the specific case of sexual assault, joint participation has been considered by the Canadian legislator to be an aggravating factor that “elevates sexual assault simpliciter to a higher level of seriousness and exposes the offender to potentially greater punishment”. Indeed, section 272(1)(d) of the Criminal Code states that sexual assault with a weapon/threats to a third party/causing bodily harm also “occurs when a person is sexually assaulted by someone who commits the assault with any other person.” The maximum punishment for this offence is imprisonment for a term of 14 years (instead of the 10 years’ term for simple sexual assault). The essential elements of the offence (colloquially known as “gang sexual assault”) are, firstly, a sexual assault committed against the victim (contrary to section 271 of the Criminal Code) and, secondly, the participation of the accused to the sexual assault (as provided for in section 21). The provision essentially refers to the forms of participation to an offence previously explained, especially the ones contained in section 21(1)(a).
Exactly the same issues are addressed in the Italian Codice Penale. As we will see, similar provisions are adopted, although differently structured. Firstly, unlike the corresponding provision in Canadian law, article 609 bis of the Italian Penal Code does give a definition of sexual assault (named “violenza sessuale”), followed by the consequent punishment. The article reads as follows: “Any person who by violence or threat or by means of abuse of authority, forces anybody to commit or to endure sexual actions is liable to imprisonment for a term from five to ten years. To the same punishment is liable any person who induces anybody to commit or to endure sexual actions: 1) abusing the conditions of physical or psychical disability of the victim at the moment of the fact; 2) deceiving the victim in order to replace the guilty party by another person.”
Furthermore, similar to section 21 of the Canadian Code, article 110 of the Italian Penal Code (titled “pena per coloro che concorrono nel reato”) introduces the model of equal liability, in which participants are all considered equally responsible for the crime committed. Unlike the corresponding Canadian provision, however, this article does not specify what kind of participation can constitute an offence, thus it is not evident if it also covers aiding and abetting, encouragement and endorsement. Nonetheless, Italian jurisprudence has consistently held that article 110 applies to any contribution, material or psychological, provided at any stage in the planning, organizing and executing of an offence, including the incitement or reinforcement of the will to commit it. In addition, according to the Penal Code, four requirements must be met for participation to be punishable: plurality of persons, commission of a principal offence, a causal nexus between the activity of the accessory and the commission of the event prohibited by the law, and awareness and will to play a role in carrying out the fact.
So far, the Italian provisions are, in substance, quite similar to those adopted in the Canadian Criminal Code. However, law no. 66/1996 introduced in the Italian criminal system a new element that is not featured in Canadian law: group sexual assault (“violenza sessuale di gruppo”) as an autonomous offence.
Indeed, article 609 octies states: “The sexual violence of a group consists of the participation of several people, to commit actions of sexual violence mentioned in art. 609 bis. Everybody who commits actions of sexual violence in a group is punished with an imprisonment for a term from six to twelve years”.
The ratio for its introduction as an autonomous offence with higher penalties than simple sexual assault is mainly related to its perception as a “more hateful violation of the victim’s right to sexuality in its undeletable essence of self-determination”. Indeed, the higher number of assailants has a higher intimidating effect, causes major humiliation or shame for the victim and increases the risk of reiteration of the sexual acts (also by increasing individual criminal tendencies). For all these reasons, the Italian legislator decided not to consider sexual assault in a group merely as an aggravating factor anymore – as it would often be ineffective due to the simultaneous application of mitigating factors- and to create an autonomous offence able to fight such a hateful phenomenon more vigorously.
Italian jurisprudence affirmed that it is also possible to convict of group sexual assault the person that did not physically commit sexual abuse against the victim, but simply contributed to the abuse being perpetrated by others. It is, therefore, sufficient to prove that the perpetrator had carried out an action suitable to facilitate the unlawful sexual act consummated by others (for example, holding the victim or watching the sexual abuse being committed while staying in the same room). Again, Italian courts take into account the impact of the presence of a “group”, which mainly intimidates the victim and reduces her possibility to oppose and escape. Hence, the mere voluntary presence of a person to the sexual abuse can, on one hand, increase the confidence of the group and, on the other, frighten the victim. As such, it is susceptible to arise criminal liability.
The differences and similarities between the Canadian and the Italian approach can better be understood by examining the case law of said countries.
In R. v. Edmondson, the Court of Appeal for Saskatchewan re-directed the error of a trial judge and clarified the relationship between the three provision we mentioned above, which is that of “included offences”. Indeed, the Court explained that the greater offence with which the accused in the case at stake was charged, “group sexual assault” as provided for by section 272(1)(d), included the lesser offence set forth in section 271, namely sexual assault simpliciter. Thus, in order to apply section 272(1)(b) the Crown must prove beyond reasonable doubt that both its essential elements are present: first, it must prove that one of the accused actually committed the sexual assault (that is, had the actus reus and mens rea of sexual assault simpliciter) and, second, that the accused “is a party to the offence with any other person” (thus, had the actus reus and mens rea of some form of party liability). Section 21 is the provision that triggers the “upgrading” from section 271 to section 272(1)(d), which absorbs the former.
Conversely, the Italian Court of Cassation reaffirmed in its judgement no. 35150/2011 the demarcation line between participation in a sexual assault (art. 110 and 609 bis) and group sexual violence (art. 609 octies). In fact, while in Canadian law participation in a sexual assault is included in the greater offence of “gang sexual assault”, in Italian law the two are considered different offences and the presence of a specific norm such as the one contained in article 609 octies makes the cases of participation in sexual assault extremely marginal.
As a matter of fact, the Court of Cassation ruled that in order to charge a person with group sexual assault, it is both necessary and sufficient to prove that two (or more) people were present at the same time and in the same place where (at least) one of them was committing sexual assault. As previously mentioned, the ratio of article 609 octies is to provide a stronger protection to the survivor of a sexual assault that perceived the contemporaneous presence of more persons when the sexual violence was being carried out. The perception of the presence of even just one individual more than the perpetrator of the abuse is able to cause greater intimidation, reducing and/or nullifying the victim’s capacity to react. Thus, the perception of the presence by the victim is the key element that distinguishes group sexual assault.
As a result, participation in sexual assault would only apply for actions of instigation or counsel (called “concorso morale” in Italian law) or for helping the principal (called “concorso materiale” in Italian law) without being physically present at the scene of the crime while it is being committed.
On the other hand, the accused shall be charged with group sexual assault, independently from who the principal is, in all those cases where the victim is able to perceive the simultaneous presence of multiple people at the place and time of the crime.
Finally, there is a third option: there can be a charge for participation in a group sexual assault (“concorso in violenza sessuale di gruppo”). In this case, the prosecution must prove that the sexual violence is carried out by multiple actors, that there is an action of moral or material facilitation by the party and that the victim could not perceive the presence of the party. Interestingly, this third option is not considered in Canadian law, since section 21 on the parties to an offence combined with section 721 on simple sexual assault would simply make the essential elements of “gang sexual assault” and, thus, be included in it.
Canadian Criminal Code, RSC 1985, c C-46
Italian Penal Code, Royal Decree No 1398 of 19 October 1930.
Astolfo di Amato, Criminal law in Italy (Alphen aan den Rijn: Kluwer Law International, 2011)
Giovanni Fiandaca & Enzo Musco, Diritto penale. Parte generale, 7th ed. (Bologna: Zanichelli, 2014)
Corte di Cassazione. 6 April 1987 (1988) Cassazione Penale 2063.
Corte di Cassazione, 13 November 2003, Pacca e altro, Rivista 227496, n. 3348
Corte di Cassazione, 13 July 2011, Cassazione Penale Sez. III, no. 35150.
R v Briscoe, 2010 SCC 13,  1 SCR 411
R v Dooley, 2009 CanLII 910 at para 123 (ONCA)
- v Edmondson, 2005 CanLII 51 (SKCA).
R v Thatcher, 1987 SCC 53,  1 SCR 652
R v Tomlinson, 2014 ONCA 158 at para 143