Every day he heard the screams of adults echoing in the house. Her mother, a Ukrainian model, and her partner quarreled and quarreled: they insulted each other, slaps, scratches and threats flew. They grabbed each other by the hair and smashed objects. He was only a child of about ten. He didn’t need to cover his ears and crouch in a frightened corner. He couldn’t run away from home.
Those scenes he was forced to witness were certainly not against him, but they were pure violence. So for the prosecutor’s office the child was in effect the implicit victim, a passive subject and a direct spectator of all that aggression. And the couple was accused of mistreatment, committed against him despite not having acted directly towards the minor. With an aggravating circumstance, which has become the real object of the trial, that of “assisted violence”.
An unprecedented thesis, given that for the code “assisted violence” is generally an aggravating circumstance that exacerbates the penalty of whoever commits the crime in the presence of a minor. However, there were no complaints from the woman against her partner or against him against her to which that aggravating circumstance could be linked. But the prosecutor Barbara Badellino did not give up. Not even before the first round in which a judge gave her wrong: at the end of the preliminary hearing, in fact, the judge Stefano Vitelli acquitted him (who had chosen the trial) and acquitted her who wanted the shortened procedure.
And so the prosecutor immediately appealed, supporting his thesis: making a child witness continuous physical and verbal violence “is not only morally harmful and unbecoming”, it is mistreatment of him. “The acquittal is based on the erroneous conclusion that the contested conduct has exclusively ethical, moral and civil relevance, but that it has no criminal relevance – writes the prosecutor in the appeal – ‘Assisted violence’ is widely recognized by jurisprudence of the Court of Cassation “.
In short, the GUP believes “that it is a crime against the minor who is not the direct object of violence, only if there is mistreatment of one of the parents to the detriment of the other. But the code protects the psychophysical integrity of the family member. it is clear that the victim of the crime is the minor forced to habitually witness physical and verbal violence behaviors, and the oppression of an adult towards the other such as to cause him existential suffering, it is not clear why the existence of a crime of mistreatment upstream to configure that to the detriment of the minor who assists “.
The accusation proved the “deep suffering, unhappiness and malaise of the child”. Not only because her mother thought only of herself, to make herself beautiful, to go to the beautician, even filling the baby’s room with her clothes and her shoes. But also because the little one had expressed his discomfort even at school. He almost always lived with his father but every time he saw his mother he would tell of the quarrels between the woman and her partner that were sparked by her mutual jealousy. And it was the parent who filed the complaint.
The sentence acknowledges that the mother “paid little attention to the traumatic effects that this spectacle could cause in her son, in line with his selfishness, the almost exclusive interest in his own career”. The child “witnessed violent verbal and physical behavior without being the direct recipient. In short, for the prosecutor, it would be the crime of” assisted mistreatment “. an aggravation of the sentence and which causes the minor to be considered an offended party of the crime, it is essential that there is an upstream crime: maltreatment that takes concrete form in multiple acts of physical and psychological harassment by a subject acting to the detriment of a victim.
“In this case, however – observes the judge – there is no presumed maltreatment crime to which the habitual passive action of the minor who attends it is linked”. His decision is based on “criminal law and stringent systematic reasons”: “These dynamics – in short – fall within not only morally unbecoming facts, but also in civilly unlawful conduct that must be promptly assessed and protected in the interest of the minor and his well-being “.
According to the prosecutor’s office, it cannot be like this: “it is evident that the contested conduct, having deliberately and knowingly forced the child to witness physical and verbal violence such as to cause discomfort, suffering, anxiety, fear, integrates the crime of mistreatment”.