1. The marriage relationship between the active subject and the passive subject of the crime of sexual acts with a minor is not relevant for the purposes of excluding punishability since, according to article 84, paragraphs 1 and 2 of the Italian civil code, “minors cannot marry”. Jurisprudence, moreover, has always held that a Romani marriage is not valid in the Italian legal system, a fortiori with a minor under the age of 16. And the civil norm coincides with the penal one, because before the age of 16 there cannot be any capacity to contract a marriage or to cohabit more uxorio. Therefore, the punishability for the crime referred to in article 609-quater, par. 1, n. 2 of the Italian criminal code cannot be excluded by the mere presence of a stable cohabitation and the minor’s consent to sexual relations.
2. Article 609-quater of the Italian criminal code provides for an increasing protection differentiated by age: any sexual act with a minor under the age of 14 is considered a crime, even if carried out with her/his consent (with the exception of paragraph 3, for sexual acts with a minor under the age of 13 when the age difference is within three years), thus, the capacity to give valid sexual consent is reached at the age of 14.
However, for particular situations, including cohabitation, the legislator raised to 16 years the threshold for valid consent to sexual acts. And only article 609-quater, par. 2 of the Italian criminal code, relating to persons over the age of 16, requires an “abuse of the powers connected with the position” of the offender, not also par. 1, n. 2, which is related to persons under the age of 16.
Consequently, the more uxorio cohabitation of an adult with a minor under the age of 16 is sanctioned irrespectively of the realisation of corrective or inductive conducts, or of the abuse of a dominant or authoritative position.
(In the present case the defendant, who was an adult, had claimed that he had a consensual cohabitation with a minor under the age of 16, comparable to a marriage in the Roma community of reference. The defence focused on the existence of an equal relationship, not characterised by the subjection of the minor that article 609-quater, par. 2 of the Italian criminal code – but not paragraph 1, n. 2 of the same article – requires in order for the offence to be committed.)
