Commentary on Judgment No. 50298 of 2023: The Notion of 'Sexual Activities' in the Crime of Child Pornography

The recent judgment no. 50298 of October 25, 2023, deposited on December 18, 2023, offers an important reflection on the notion of "sexual activities" in the context of the crime of child pornography. The Court of Cassation, presided over by A. Gentili and with rapporteur G. Noviello, rejected the appeal against a ruling of the Court of Appeal of Turin, emphasizing the necessity of a broad interpretation of the law to ensure adequate protection for minors.

The Crime of Child Pornography and the Notion of 'Sexual Activities'

The judgment under review focuses on the distinction between "sexual activities" and "sexual act" as defined by Article 609-bis of the Penal Code. According to the Court, the notion of "sexual activities" referred to in Article 600-ter, paragraph seven, must be interpreted in a broader sense. This approach is motivated by the need to protect the psychological and physical integrity of minors from any form of sexual involvement, even when it does not materialize in explicit acts.

In particular, the Court highlighted that the legislator intended to protect minors from any form of exploitation, including simulated sexual activities, which could nonetheless compromise their well-being. This expansion of the notion of "sexual activities" is fundamental to ensuring adequate protection in a context where technologies and communication practices can easily escape more restrictive interpretations.

Implications of the Judgment

The implications of this judgment are significant and deserve attention, especially for legal practitioners and those involved in child protection. The distinction between the notions of "sexual activities" and "sexual act" is not merely theoretical, but has practical repercussions on how cases of child pornography are prosecuted.

  • The protection of minors is extended to situations that previously might not have been considered criminally relevant.
  • Investigations and prosecutions for child pornography offenses could increase, including cases of simulated sexual activities.
  • There is a need for greater commitment in training legal practitioners to correctly interpret these notions and apply them in judicial proceedings.
Crime of child pornography - "Sexual activities” - Notion - Differences with the notion of “sexual act” as per Article 609-bis of the Penal Code – Reasons. In matters of child pornography, the notion of "sexual activities" referred to in Article 600-ter, paragraph seven, of the Penal Code must be understood in a broader sense than that recognized for the different notion of "sexual act," relevant under Article 609-bis of the Penal Code, given that the legislator, in order to protect the psychological and physical integrity of the minor from any type of sexual involvement, intended to safeguard them from any form of exploitation capable of involving them on a sexual level, not only through their correlation to explicit and concrete sexual acts but also through their reference to merely simulated sexual activities.

Conclusions

Judgment no. 50298 of 2023 represents an important step in Italian jurisprudence regarding the protection of minors. Its extensive interpretation of the notion of "sexual activities" serves as a warning for all those operating in the field of criminal law and child protection. It is crucial that practitioners in the sector understand the implications of this judgment, adapting their practices and legal strategies to ensure efficient and adequate protection. Only in this way can we truly safeguard the integrity and well-being of the most vulnerable in our society.

Bianucci Law Firm