This story has been making the rounds in certain circles of blogdom, and I thought it bore some comment. The relevant portion of the story is reproduced in its entirety below:

Sexually abusing a teenager is less serious a crime if the girl is not a virgin, Italy's higher court said on Friday in a controversial ruling that immediately drew a barrage of criticism.

The court ruled in favor of a man in his forties, identified only as Marco T., who forced his 14-year old stepdaughter to have oral sex with him after she refused intercourse.

The man, who has been sentenced to three years and four months in jail, lodged an appeal arguing that the fact that his stepdaughter had had sex with men before should have been taken into consideration during his trial as a mitigating factor.

The supreme court agreed, saying that because of her previous sexual experiences, the victim's "personality, from a sexual point of view, is much more developed than what would be normally expected of a girl of her age".

"It is therefore fair to argue that (the damage for the victim) would be lower" if the abused girl was not a virgin, Italian news agencies quoted the court as saying.

This means the man could now be handed a lighter sentence.

Let me start by saying that I think the Italian supreme court is wrong here. Nonetheless, I hesitate to condemn their legal reasoning as entirely off-bases. My hesitation comes because I'm not aware of Italian doctrine on the matter of culpability for extent of damage.

In the US, generally the act itself is what you're punished for. If you assault somebody it's the same penalty whether it's particularly nasty or comparatively less bad. There are mitigating factors, but these tend to be actions as well (Whether it was a first offense, whether the perpetrator pleads guilty, whether the perpetrator shows remorse, whether they realized what they'd done and called an ambulance after, that sort of thing). The one case I can think of where extent matters is if you assault somebody and the victim dies as a result, but in that case it's moving from one category of crimes, assault, to another, murder/manslaughter.

There has been movement in recent years towards victim's rights in criminal trials, and I'm highly skeptical of it. The state, not the victim, puts criminals on trials. When you are charged with a crime, you're being charged with having committed a transgression so great that you didn't just harm the victim, you harmed society as a whole. The matter is taken out of the victim's hands. What's important, then, is the criminal's act, and the damage he happened to cause is secondary. We're concerned with punishing the act of rape, rather than ensuring that, in this case, the criminal is punished in proportion to the amount of damage he caused the victim.

Moreover, to the extent we care about harm to the victim we're interested in the victim's opinion of the crime (sometimes, where there's flexibility in the judge's sentencing, they'll ask victims to fill out statements describing the extent of their harm and how they feel the perpetrator should be punished). We don't, however, establish some universal metric for how much damage would have been caused in the average case. "Normally being assaulted by your stepfather as a 14 year old causes 20 Megafreuds of psychological damage. However, if she's previously had sexual relations, it reduces the damage by 5 Megafreuds."

First, it's difficult to tell how psychologically damaging an assault is, and you certainly won't get an accurate picture by deriving universal standards based on whether the victim was a virgin or not, or any other factors you might care to test. It's also problematic to use damage to the victim as a mitigating factor. Should there be a lesser penalty for murdering the elderly, because they have less life left to enjoy? What about people with terminal diseases? Of course, you're unlikely to see such an extension of this reasoning by the Italian Supreme Court, because it seems pretty clear that, regardless of Italian standards of sentencing, this decision was informed by a deeply patriarchal mindset.

Nonetheless, I'd be interested to know if Italian courts in general put much stock in the extent of damage to the victim. If it is the case that their courts when sentencing attempt to determine exactly how much damage was caused to the victim (and do so through universal standards rather than a direct query) and proportion the punishment accordingly, the ruling isn't entirely off-base. It's still off-base in its assumption that non-virgins are hurt more by sexual assault than virgins, but it's not quite as off-base as some of the blogs have claimed.

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This page contains a single entry by Zach published on February 21, 2006 2:34 PM.

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