Intrusions in the privacy of people’s sex life have become very common in recent years. Among the various forms of intrusion the most serious one, at least in terms of diffusiveness, is the dissemination of private sexual images, often referred to as “revenge porn”. The harmfulness for the victims of “revenge porn” and the dimensions of such a phenomenon have already induced lawmakers in the main Anglo- American legal systems to introduce a specific criminal offence, so that it is crucial to assess if in our legal system the criminalisation of disseminating private sexy images would be a viable option. This essay, starting from an analysis of the phenomenon at issue from several standpoints (“in action”, linguistic, statistic) as well as the criminal law legal framework in Italy, aims to present some preliminary reflections on a proper criminal provision in light of the harm principle and the principle of minimal criminalisation
The article originates from a recent decision of the Supreme Court of Cassation, which rules that the crime disciplined by art. 600-ter, comma 4, of the Penal Code cannot be applied to the conduct of those who forward child-pornographic images that have been taken voluntarily and autonomously by the minor who is depicted in the image (so called “selfies”). This decision allows us to focus on the limits of child pornography offences when applied to the phenomenon of “sexting” involving minors. Through a comparison with two well-structured decisions of the lower courts, the author analyses the critical elements of art. 600-ter c.p. and evaluates the legitimacy that could be attributed to the consent of the child depicted. The inadequacy of the present provisions compels the courts to either offer contrived interpretations, or accept impunity. A comprehensive solution for this new juvenile culture of “sharing sexual images” needs to find a balance between the need for protection and the recognition of children’s rights, and also to identify effective prevention and educational systems.