by Matt Barr

"New and used"

A revolting ruling from the highest court in Italy.

The case concerns Marco T., who was convicted by a Cagliari, Sardinia court in 2001 of sexual violence and threats against the 14-year-old daughter of his live-in girlfriend and sentenced to three years and four months in prison, [the] ANSA [news agency] said.

Cagliari judges refused his request to have the sentence[] reduced on mitigating circumstances that the crime was less serious because the girl had already had several sexual partners.

However, Italy's high court said the Cagliari tribunal was wrong to reject the request and said the Cagliari judges should re-evaluate the decision because the girl "since the age of 13 had had many sexual relations with men of every age and it's right to assume that at the time of the encounter with the suspect her personality, from a sexual point of view, was much more developed than what one might normally expect from a girl of her age," ANSA said, citing the decision.

Cabinet Minister Gianni Alemanno nailed this one, according to the report: "Not only does it diminish the objective value of the crime of rape, but it considers that women should be treated as merchandise, where you make a difference between new and used."

There is a credible argument to be made that evidence of harm should be considered in sentencing for a rape conviction, I guess. If you're convicted of assault, there's a difference if you slapped your victim or took a piece of ear off. If you're convicted of robbery, it matters if you stole twenty bucks or a family heirloom.

But those things are objectively measurable. So a decision has to be made whether to let rapists present evidence at sentencing -- including the compulsion of testimony and physical evidence by force of law -- of a victim's sexual history, her behavior after the rape, and all sorts of other personal things that in the end will result in a zealous argument over, but no real definitive conclusion about, something no one can ever really prove.

But beyond that, here we're talking about a 14-year-old. Commentators otherwise willing to go to bat for individual rights tend not to deal well with underage sex issues, to the point where they can say that in a state where sex under 16 is statutory rape, evidence of pregnancy in a girl under 16 is allegedly, in the warped mind of the square attorney general, supposedly evidence of a crime. Even without that handicap, it would be hard to make a credible policy argument that there shouldn't be something approaching mandatory punishment without possibility of mitigation if you rape a minor.

Evidently, of course, that policy decision hadn't been made in Italy, or hadn't until this case -- courts traditionally proscribe evidentiary rules that aren't already codified. (So no, it's not an "activist court.") It's enough to say, then, that they just got it horribly wrong.

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