Judgment No. 46236 of 2024 and the Aggravating Factor of the Presence of a Minor in Criminal Law

Judgment No. 46236 of June 5, 2024, filed on December 17, 2024, by the Court of Cassation, serves as an important reference point in Italian jurisprudence regarding the configurability of the aggravating factor under Article 61, paragraph one, number 11-quinquies, of the penal code. This provision refers to the presence of a minor during the commission of serious offenses, such as sexual violence, and provides fundamental clarifications on the notion of "presence" and the legal consequences that arise from it.

The Regulatory Context and the Judgment

The Court has established that the "presence" of the minor does not necessarily require active or conscious participation but is limited to the auditory or visual perception of the event. This means that even a very young child, unable to fully comprehend what is happening, can be considered present for the purposes of the aggravating factor. The judgment refers to a specific case of sexual violence committed in the presence of a minor just over a year old, clarifying that the age and degree of psycho-physical maturity of the minor are irrelevant.

Aggravating factor under Article 61, paragraph one, number 11-quinquies, penal code - Presence of the minor - Notion - Auditory or visual perception of the event - Sufficiency - Age and maturity of the minor - Irrelevance - Case law. For the purposes of the configurability of the aggravating factor under Article 61, paragraph one, number 11-quinquies, penal code, the prescribed "presence" of the minor at the commission of the act requires only the visual or auditory perception of what has occurred by the minor, regardless of their age, the level of psycho-physical maturity reached, or their ability to register and internalize the criminal events. (Case concerning a crime of sexual violence committed in the presence of a minor just over a year old).

Implications of the Judgment

This decision has significant implications for criminal proceedings involving a minor. The legal consequences may include:

  • An increase in the penalty for the offender, making the State's response to crimes committed in the presence of minors more severe.
  • A greater protection of minors' rights, recognizing their status as victims in situations of violence.
  • An impact on the defense strategy of the defendants, who will need to consider the aggravating factor in their line of defense.

Furthermore, the judgment aligns with European principles of child protection, which require member countries to adopt effective measures to protect children from all forms of violence.

Conclusions

Judgment No. 46236 of 2024 represents an important step in recognizing the vulnerability of minors and in punishing violent behavior against them. It clarifies that the presence of a minor, even if unable to understand the context, is sufficient to configure an aggravating factor, emphasizing the importance of protecting the young in situations of abuse. Italian jurisprudence continues to evolve in response to social needs, and this judgment demonstrates a growing commitment to the protection of minors.

Bianucci Law Firm