Domestic abuse

The offence of domestic abuse, governed by Article 572 of the Criminal Code, provides for imprisonment of three to seven years for a person who abuses (the provision uses precisely that word) a member of the family or, in any event, a cohabitant (other forms of the same offence are also provided for to the detriment of persons entrusted to the perpetrator for education, care and supervision). The provision also provides for increased penalties where the abuse results in serious or very serious personal injury, or in the death of the victim (in that case the penalty is twelve to twenty-four years’ imprisonment). The legislature does not in any way typify the abusive conduct, which may in the abstract take the most varied forms. Abuse (and also injury understood as harm to the psycho-physical integrity of the injured person) may of course be both physical and moral (threats, insults and so on). It must in any event be conduct which the perpetrator repeats over an appreciable period of time, and not an isolated occasion. Only the continuation over time of episodes of abuse produces the habitual character necessary for the offence in question (which is, precisely, regarded technically as a so-called habitual offence). An isolated episode of verbal or physical violence (even if acted out in a “domestic” setting) will constitute a different form of offence (such as, for example, insult, injury or threat) and not that of abuse, which, as stated, requires the perpetrator’s conduct to the detriment of the victim to occur with a certain constancy over time. Abuse, therefore, is punishable as such under the Criminal Code when it does not consist in an isolated or wholly occasional episode, but only if it is repeated over time.

The court’s examination during the trial must therefore concern both the individual episodes and the ascertainment of their “consequential” and repetitive character.

It is precisely that repetition (the habitual character) which is actually capable of causing in the victim that state of subjection and harassment (experienced and acted out in the family setting) which the provision is intended to repress and prevent. It is clear that an episode which is abusive in the abstract (an argument, an insult, even a violent act) does not appear capable of generating that state of continuous and prolonged (or, in any event, chronologically appreciable) physical and/or psychological prostration which characterises the victim of domestic abuse (the criminal relevance of the perpetrator’s conduct remains, of course, but under another offence punishable regardless of the habitual character recalled above).

On the necessary habitual character of abusive acts for the offence of abuse against family members and cohabitants (Article 572 of the Criminal Code), a headnote of the Court of Foggia is set out: “….The offence created by Article 572 of the Criminal Code consists in a series of repeated attitudes of violence, both physical and moral, such as to constitute systematically harassing conduct towards the injured person. For the offence to be made out, it is therefore necessary to prove both the existence of such conduct and its repetition, it not being possible to bring within the offence-creating provision conduct which, although violent and threatening, does not have the character of being episodic. The offence of domestic abuse must therefore be excluded whenever, as in the present case, the relationship between the spouses, although conflictual and often marked by mutual insults, has never been characterised by systematic abuse or harassment, the proof of the ontological features of the offence charged not having been reached. (in the case in point the injured person herself excluded any failure by the defendant to meet the obligations of maintaining the family unit, or threats or other coercive conduct towards her or the children, so that an acquittal for the act not having occurred must follow)…”