by Antonia Grimolizzi*
Secondary victimization has been defined as «the victimisation that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim» [Recommendation Rec(2006)8 of the Committee of Ministers to member states on assistance to crime victims, par 1.3]. In other words, secondary victimisation occurs when the person is offended not only by the crime committed but also by the way the judicial process is conducted. The consequence of secondary victimisation is a disincentive for the offended person to file a complaint to avoid being victimised twice. Furthermore, secondary victimisation often goes through stereotypes and prejudices related to the victim’s gender.
With the judgment no. 12066/2023 the Italian Criminal Court of Cassation has assessed the major problem of gender stereotypes in judicial decisions, marking a relevant step towards the emancipation of judgments from gender stereotypes.
The reported facts
The plaintiff is a woman who accused her partner of sexual violence against their son. Since the case was dismissed, the man sued her for slander. In first and second instance the woman was found guilty of slander for falsely accusing her partner. The woman decided, therefore, to lodge an appeal in the Supreme Court of Cassation.
The grounds of the judgment
In its decision, the Court of Cassation focused on the Court of Appeal’s arguments that led to the woman’s conviction. The Court of second instance found that the woman’s complaint against her husband originated, on the one hand, from the conflictual relationship between the in-laws and the man and, on the other, from the conflict between the life partners themselves. In particular, the Court argued that the great tension between the two most probably arose following the man’s refusal to marry the woman and to regularise a sentimental relationship from which a son was also born. Overall, from the Court’s words, it appeared that the woman’s original complaint was merely based on a revenge against her partner.
Namely, as the Court of Cassation observes, the judges of first and second instance found the crime of slander standing just because the man prosecution for sexual violence was dismissed, trying to support this thesis with popular beliefs and gender-based stereotypes instead of concrete facts. The judgment appears heavily flawed: first, it held that marriage is so important to a woman that refusal can be considered enough to commit a crime for revenge against her partner and, secondly, the conviction was based – as the Supreme Court points out – almost exclusively on these subjective, conjectural and a priori evaluations. Not surprisingly, the Supreme Court speaks of «distorting cultural stereotype».
In absence of objective evidence, the Court of Appeal wrote in the judgment that the woman’s complaint appears as an extreme attempt to attack her cohabitant, with the clear purpose of revenge, aimed at obtaining the final removal of the offended person from their son, without any scruples whatsoever. As an evidence that the Court of Appeals failed to examine the specific facts, the Court of Cassation also observes that the judgment never took into consideration that the child had revealed to his mother (and grandparents) that he had been abused by his father – notwithstanding the fact that this was the reason why the woman had filed a report, in order to ascertain them. We should not forget – as the Court of Cassation points out – that the woman, as a mother, was morally and legally obliged to protect the child. On the contrary, the Court of Appeal blames the woman for opposing her son’s meetings with his father.
The overall result is what the Court of Cassation named a «prejudicial overturn» in the sense that subjective evaluation based on prejudices has prevailed on the only acknowledged fact: the son was scared of his father. Indeed, the judges reproached the Court of Appeal for basing the guilty verdict exclusively on subjective assessments distorted by cultural stereotypes and quashed with revert to the court of appeal.
Secondary victimization and legal framework
Unfortunately, Italian decisions are not new to this kind of reasoning. In 2021, Italy was convicted (ECHR, 27 may 2021, J.L. v. Italy, no. 5671/16) for violating art. 8 ECHR. As we can read in the judgment, Italy was accused of reproducing sexist stereotypes because judges, in a case of rape, made considerations about the red underwear shown by the victim on that evening, as well as her bisexuality, relationships and casual sexual intercourses prior to the alleged events. On that occasion, the ECHR warned the Court of Appeal for using a language that «conveyed prejudices existing in Italian society regarding the role of women that were likely to be an obstacle to providing effective protection for the rights of victims of gender-based violence, in spite of a satisfactory legislative framework». In addition, ECHR pointed out that criminal proceedings played an important role in combating gender-based violence and gender inequality and for this reason it is «essential that the judicial authorities avoided reproducing sexist stereotypes in court decisions, playing down gender-based violence and exposing women to secondary victimisation by making guilt-inducing and judgmental comments that were capable of undermining victims’ trust in the justice system».
In the last years, increasing attention has been paid to secondary victimization and new European as well as international sources of law that directly deal with secondary victimization have been enacted. In particular, one can mention the “Recommendation Rec(2006)8 of the Committee of Ministers to member states on assistance to crime victims” containing the abovementioned definition of secondary victimization (par. 1.3.) as for «the victimisation that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim». Moreover, the Directive 2012/29/EU (transposed in Italy in 2015) underlines that «Women victims of gender-based violence and their children often require special support and protection because of the high risk of secondary and repeat victimisation, of intimidation and of retaliation connected with such violence». Same importance should be devoted to the Istanbul Convention (ratified by Italy in 2013) whereby is stated that «parties shall ensure that measures taken pursuant to this chapter shall», among the other things, «aim at avoiding secondary victimisation». In the light of these new instruments, the Supreme Court of Cassation found that a secondary victimization also occurred in the present case, because – as we can read in the judgment no. 12066/2023 – the woman has suffered another victimization due to the way she has been treated.
*PhD Candidate, University of Pisa
