CHAPTER 11

• Jurisdiction: United States

CHAPTER 11

The #MeToo Movement in Italy: Chronicle of a Death Foretold?¹

Costanza Hermanin² and Giorgia Serughetti³

Preamble: Why Italy Ought to Be a Centerpiece in #MeToo

Italy has something to do with the beginning of the #MeToo movement but is probably also among the countries where the movement encountered the strongest backlash.

This chapter analyses the relation of Italy to the beginning of #MeToo and then describes the societal and cultural characteristics that determined the emergence of Italy's specific provisions on sexual harassment and sexual violence. This background, together with the identification of the movement with Italian actress Asia Argento, help explain why #MeToo did not bring about positive change for harassment victims in Italy.

Unknown to most, two of the key figures among the women who determined the beginning of #MeToo, exposing sexual misconduct by movie director Henry Weinstein are Italian. The first, actress Asia Argento, is probably the best-known among the women who went on record with the New Yorker in the groundbreaking article by Ronan Farrow on October 10, 2017. The second is Ambra Battilana Gutierrez, the model who, back in 2015, reported Weinstein for sexual assault and worked with the New York City Police Department by wearing a wire in an attempt to extract a confession from him.

But what is even less known is that, on October 13, 2017, before #MeToo became a worldwide phenomenon, another Italian woman, journalist Giulia Blasi, asked women to share on Twitter their experiences of sexual misconduct. The hashtag that Blasi used, #quellavoltache, translates the English phrase "that time when" and opened the door to 10,000 tweets in the space of a few hours.

One might think that these three brave Italian women were nurtured in a culture of respect and rejection of abuse of power and sexual violence.

Unfortunately, quite the opposite is true. Italy is a country where, until 1981, charges of rape could be dropped by legal authorities if a rape victim agreed to marry her rapist. Until 1996, furthermore, sexual violence was defined by law as an offense to public morals, not against sexual freedom and physical integrity.

Thus, social movements have mainly targeted violence against women, rather than harassment at the workplace, which only featured—and keeps being featured—as a secondary concern for many NGOs.

Data on female murders and domestic violence in Italy are amongst the most worrying in Western countries. According to the latest survey by the Italian National Institute of Statistics (ISTAT),⁴ violence affects about one in three women between sixteen and seventy years old: 6.8 million women have suffered some form of physical or sexual violence during their lives. In 41 percent of the cases (2.8 million) violence was committed by partners or former partners. The latter group, along with relatives and friends, is responsible for most of the more serious violence, such as rape and physical violence.

Violence against women is still a largely hidden phenomenon. A high percentage of women do not speak to anyone about the violence they have suffered, do not report it (reporting rates cover 12.2 percent of partner violence and 6 percent of non-partner violence), and do not seek help. According to ISTAT, women do not report such abuse because they believe they can handle the situation by themselves or they think that the fact is not serious.⁵ But also, they do not report for fear of retaliation, shame and embarrassment, or distrust in law enforcement agencies.

Although the first anti-violence centers run by women date back to the 1980s, and women have mobilized against violence since then, the cultural obstacles to the emergence of an anti-violence movement remain very high. This also has implications for the possibility of bringing cases of sexual harassment within #MeToo and beyond.

Moreover, this cultural reluctance also explains why the most significant feminist movements in Italy have focused on the issue of violence against women from the start. This is the case of Non Una di Meno (NUDM—"Not one woman fewer"), which since 2017 has organized major public events on the International Day for the Elimination of Violence against Women (November 25) and International Women's Day (March 8).⁶ Since the beginning of the #MeToo campaign, NUDM has sought to forge a link with it and supporting an effort to turn it into a collective battle through the slogan "WeTo(o)gether." However, this was not enough to prevent the extreme specificity of #MeToo, which was reduced to the personal stories of its best-known characters.

Legislative Loopholes and the Limits of Criminalization

Criminal Law

The pervasive nature of violence against women has had an effect on Italian legislation as well. Over the past decades, criminal law and jurisprudence on different forms of violence, including sexual violence and stalking, has evolved to a much greater extent than civil norms on harassment at work.

The real turning point was 1996 when, as mentioned earlier, the present criminal law framework was enacted. The three basic features of this legislation⁷ have been very relevant also in the context of #MeToo. The legislation implies, first, that rape and other forms of sexual violence can only be prosecuted following a complaint, and not ex officio. Second, the complaint needs to be filed within six months from the assault. Third, a victim cannot withdraw a complaint of sexual violence—even to avoid consequences of victimization or intimidation by the perpetrator. Although some, especially in the context of #MeToo, have criticized the six-month deadline as too restrictive, some feminist lawyers accept it as a reasonable safeguard against false complaints and blackmail. Penalties for sexual violence range from five to ten years in prison.

The boundaries between sexual violence and sexual harassment are blurred under the present penal law framework. Sexual harassment does not feature as such in the Criminal Code; thus, case law takes as a reference Article 660 on "Simple Threats." In addition, the Supreme Court of Cassation has provided a broad interpretation of the notion of "sexual violence,"⁸ for example, defining as attempted sexual violence to include acts that do not imply physical contact.⁹

In judgment no. 2742/2010, the Supreme Court established that "vulgar expressions with a sexual background, or invasive and insistent courtship acts, other than sexual abuse, are to be considered sexual harassment." In a prior case, it had specified that harassment can be equated "with all those behaviors, sexually connoted, different from sexual abuse, which go beyond complimenting a woman or proposing a personal relationship."¹⁰

A 2009 Law Decree established stalking as a distinct offense. Article 612 bis of the Criminal Code defines stalking as "repeated conduct that threatens or harasses anyone in a way that causes a persistent and severe state of anxiety or fear, or a well-founded alarm for the safety of one's own, or of a close relative, or of a person connected to him by an emotional relationship, or that forces one to alter his own habits of life." Different from harassment and sexual violence, stalking can be prosecuted ex officio in specific cases. When compared to harassment and sexual violence, the distinctive element of stalking as an offense is its psychological impact on the victim. Criminal statistics of the past years have shown a strong correlation between stalking and sexual harassment. According to a 2014 research by the Ministry of Justice on first instance rulings based on Article 612 bis, in 91 percent of the cases the convicted stalker is a man, in 74 percent of the cases a former partner, and in half of the cases the stalker's goal was to get back in a sentimental relationship with the victim.¹¹

Last, in 2013, the Italian government adopted through an emergency procedure a Law Decree (later voted by Parliament into Law 119/2013), dubbed the "Law on Femicide." The government acted after statistics showed that, at least after 2000, Italy registered one murder perpetrated by a man on a woman every third day, bringing Italy closer to Mexico than to its European counterparts. The Law on Femicide addresses violence against women in general, not just murder, and increases penalties for crimes. It establishes preventive measures as well as programs specific to female victims of violence. To date, unfortunately, it has not changed the death rate significantly.¹²

Civil Law

Up until 2005, sexual harassment did not have a space in civil law. Thus, a victim of sexual harassment could only resort to criminal charges for sexual violence or general harassment in order to seek redress. It is thanks to European Union anti-discrimination law that the Italian Code of Equal Opportunities includes harassment as a legal category. A first EU Directive¹³ established penalties for sexual harassment at the workplace and in employment more generally. A few years thereafter, EU Directive 2006/54 and a new Legislative Decree (5/2010), expanded the scope of this legislation to include harassment experienced during access to public services. This includes, for instance, sexual harassment at school or in public transportation. Alongside harassment, the latest definition of gender-based direct and indirect discrimination have been included in the National Code for Equal Opportunities and in a new article of the Civil Code, Article 2087.

In the National Code, sexual harassment is defined as "any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment." The Italian definition uses the adjective unwanted, not unwelcome.

Women can thus sue perpetrators, who can be held individually liable, as well as companies for failing to protect...