ONLY IF YOU SCREAM LOUD ENOUGHT: A FLAWED REFORM OF ITALIAN SEXUAL VIOLENCE LAW - Deborah Breda - ETHICA SOCIETAS-Rivista di scienze umane e sociali

Replacing consent with dissent in the reform of article 609-bis of the Italian Criminal Code reveals the persistence of patriarchal power, internalized even by women in positions of authority

Abstract: This article critically examines the recent reform of article 609-bis of the Italian Criminal Code, which replaces the principle of free and current consent with that of dissent assessed “on the basis of the context.” This shift does not constitute a mere technical adjustment, but rather a political and cultural choice that reaffirms a patriarchal model of sexual regulation. The centrality of dissent reinstates an evidentiary logic grounded in the scrutinability of the victim’s conduct, thereby fostering practices of victim blaming and secondary victimization, which have already been censured by the European Court of Human Rights. The rhetoric of false accusations, invoked as a justification for the reform, is contradicted by official statistical data and reveals the role of the internalization of patriarchal norms even by women in positions of power. The reform thus emerges as a paradigmatic case study of the resistance of criminal law to full sexual self-determination.

Keywords: #SexualConsent #GenderViolence #CriminalLaw #Patriarchy #VictimBlaming #FalseAccusations #SelfDetermination #Art609bis #FrancaViola #SecondaryVictimization #IstanbulConvention #609bisReform #SexualViolenceReform #FreezingTrauma #HierarchyOfViolence #VindictiveWoman #Phaedra #PhaedraMyth #LawAndGender #DeborahBreda #EthicaSocietas #EthicaSocietasJournal #ScientificJournal #HumanSciences #SocialSciences #EthicaSocietasUPLI #ItalianLocalPoliceUnion

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1. Introduction: Legal Reform as a Case Study of Patriarchal Power

The reform of Article 609-bis of the Italian Criminal Code constitutes a paradigmatic case study of the interaction between criminal law, politics, and gendered power structures. The original text, unanimously approved by the Chamber of Deputies on 19 November 2025, introduced a principle of rupture: “Anyone who engages in sexual acts in the absence of the free and current consent of the offended person shall be punished by imprisonment from six to twelve years.”

This model, aligned with the Istanbul Convention and recent European legislative reforms (Spain 2022; France 2021), redefined the object of criminal adjudication, shifting the paradigm from physical violence or threat to the recognition of sexual self-determination as the central criterion of legality.

The unified text approved by the Senate in January 2026 replaced this framework with the following formulation: “Anyone who, against the will of a person, commits sexual acts against that person shall be punished by imprisonment from four to ten years,”, specifying that the contrary will must be assessed “taking into account the situation and the context.”

This semantic shift does not represent a mere technical adjustment, but rather a precise political and cultural choice: the reinstatement of discretionary judicial scrutiny of the victim’s conduct. In this sense, it reveals the resilience of patriarchy as a normative system (Walby 1990), namely an architecture of power that continues to regulate access to women’s bodies through the structural delegitimization of their testimony.

2. Fear of Women’s Speech: The Myth of False Accusations

The primary political justification for abandoning the principle of affirmative consent was the alleged need to protect men from the risk of false and instrumental accusations. Within parliamentary debate, “free and current consent” was portrayed as a dangerous formula, allegedly capable of “framing innocent men” through accusations lacking objective proof.

This rhetoric reactivates a long-standing patriarchal trope (Gavey 2005): the figure of the deceitful and vindictive woman. This archetype is deeply rooted in classical tragedy. In Euripides’ Hippolytus (428 BCE), Phaedra, rejected by her stepson, commits suicide after leaving a letter falsely accusing him of sexual violence. Believed by Theseus, the accusation leads to the innocent man’s death. This figure—later reworked by Seneca and Racine—should not be read as a mere literary analogy, but as a long-standing symbolic matrix, repeatedly mobilized in contemporary legal and media discourse to justify distrust in women’s words.

This discursive construction serves a dual function. First, it shifts attention away from sexual violence suffered by women toward the hypothetical risk faced by men, symbolically reversing the positions of victim and perpetrator. Second, it operates as a social deterrent: it reinforces the idea that reporting rape exposes women to suspicion, scrutiny, and secondary victimization, thereby discouraging the disclosure of sexual violence, particularly in relational or trust-based contexts.

Available data decisively contradict this narrative. According to estimates by the Italian Ministry of Justice (2023), false accusations of sexual violence constitute a residual percentage, estimated between 1 and 2 percent, consistent with rates observed for other serious crimes. Conversely, ISTAT data (2024) indicate that only a minority of sexual assaults are reported, primarily due to fear of not being believed or of suffering secondary victimization within judicial proceedings.

3. From Consent to Dissent: The Crystallization of Victim Blaming

The pathological core of the reform lies in the transformation of evidentiary logic. The model of free and current consent presupposed an ethic of sexual reciprocity: only an explicit, positive, and revocable “yes” could ground the lawfulness of a sexual act. Within this framework, judicial inquiry would have focused on the existence of affirmative consent, rather than on the quality or intensity of the victim’s resistance.

The contextualized dissent model reverses this logic. The victim is required to demonstrate a sufficiently unambiguous and “reasonable” refusal, assessed ex post in light of the circumstances. This clause structurally legitimizes victim blaming (Benedet 2007), reopening the door to inquisitorial questioning concerning clothing, intoxication, emotional reactions, or the failure to flee.

Such an approach ignores decades of neuroscientific research on trauma. Responses such as freezing, dissociation, or automatic submission are well-documented neurobiological reactions (DSM-5; van der Kolk 2014) and cannot be interpreted as signals of implicit consent.

The result is a systemic form of secondary victimization, in which criminal proceedings themselves become a second institutional violence. It is no coincidence that the European Court of Human Rights has repeatedly condemned Italy and other states for judicial practices grounded in gender stereotypes (M.C. v. Bulgaria 2009; K.H. v. Italy 2021).

4. Evidentiary Complexity and the Hierarchy of Sexual Violence

From a procedural standpoint, affirmative consent would have oriented investigations toward verifying the existence of a sexual agreement through relational, communicative, and contextual elements, reducing revictimization and interpretive arbitrariness. Contextualized dissent, by contrast, imposes a complex and subjective assessment of the “reasonableness” of refusal, increasing the risk of cognitive bias and premature case dismissals.

This complexity intersects with a patriarchal hierarchy of sexual violence. The reduction of the baseline sentencing range (from six–twelve years to four–ten years), combined with the reservation of full aggravation to cases involving explicit physical violence, produces a clear normative and symbolic effect: the legal devaluation of sexual violence lacking physical coercion, which nonetheless constitutes the statistically most prevalent form. This perpetuates the stereotype of “real rape” as a brutal attack by a stranger, minimizing psychological coercion, relational pressure, and exploitation of vulnerability.

5. Patriarchy Administered by Women: The Internalization of Symbolic Order

Sociologically significant is the role played by women in positions of institutional power in promoting the reform. Patriarchy does not operate as a male conspiracy, but as an internalized symbolic order (Bourdieu 1998): anyone who adopts its categories can administer it, regardless of gender. In this sense, some women may become agents of system stabilization, often in good faith or for institutional calculation, neutralizing accusations of misogyny while fragmenting feminist critique.

6. Conclusion: Law as a Cultural Battleground

Replacing consent with dissent constitutes a form of symbolic resistance to full female sexual self-determination (West 2018). It positions Italy regressively with respect to European standards and reaffirms a violence-centered model of criminal law.

A genuine way forward requires:

restoring affirmative consent as the sole legitimate standard;
implementing anti-bias procedural protocols and mandatory judicial training;
investing structurally in affective and sexual education.

Absent this paradigm shift, the message delivered to future generations will be tragically clear: your body does not belong to you unless you manage to say no loudly enough, in the right way.

The text from Summary Record No. 357 of 22 January 2026, published on the Senate’s website, in which President Giulia Bongiorno (LSP–PSd’Az), acting in her capacity as rapporteur, presented a proposal for a unified text of the version previously approved by the Chamber of Deputies.

NOTES:

- Benedet, Janine. “Hearing the Sexual Assault Complaints of Women.” McGill Law Journal 52, no. 3 (2007): 399–434.
- Bourdieu, Pierre. Masculine Domination. Translated by Richard Nice. Stanford: Stanford University Press, 2001. (original work published 1998)
- Camera dei Deputati. Disegno di legge C. 1693. Rome, 2025.
- European Court of Human Rights. M.C. v. Bulgaria, no. 39272/98 (Judgment of 4 December 2009).
- Euripides. Hippolytus. 428 BCE.
- Gavey, Nicola. Just Sex? The Cultural Scaffolding of Rape. London: Routledge, 2005.
- ISTAT. Violence against Women Inside and Outside the Family. Rome, 2024.
- L’Espresso. “Ddl stupri, ecco il nuovo testo: dal ‘consenso’ al ‘dissenso.’” January 22, 2026.
- MacKinnon, Catharine A. Sex Equality. 3rd ed. New York: Foundation Press, 2016.
- Millett, Kate. Sexual Politics. Urbana: University of Illinois Press, 2000. (original work published 1970)
- Ministero della Giustizia. Relazione annuale sulle false denunce. Rome, 2023.
- OPL. Dossier on Victim Blaming. Grey literature, n.d.
- Senato della Repubblica. Testo unificato del disegno di legge in materia di violenza sessuale. Rome, 2026.
- van der Kolk, Bessel. The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma. New York: Viking, 2014.
- Walby, Sylvia. Theorizing Patriarchy. Oxford: Blackwell, 1990.

The bibliography integrates theoretical, legal, and institutional sources, as well as primary legislative and jurisprudential materials, in order to combine normative analysis with a sociological interpretation of law.