Commentary on Judgment No. 50298 of 2023: The Notion of 'Sexual Activities' in the Offence of Child Pornography

The recent judgment No. 50298 of October 25, 2023, filed on December 18, 2023, offers an important reflection on the notion of "sexual activities" in the context of the offence of child pornography. The Court of Cassation, presided over by A. Gentili and with G. Noviello as rapporteur, rejected the appeal against a judgment of the Court of Appeal of Turin, emphasizing the need for a broad interpretation of the provision to ensure adequate protection of minors.

The Offence of Child Pornography and the Notion of 'Sexual Activities'

The judgment under review focuses on the distinction between "sexual activities" and "sexual act" as defined by Article 609-bis of the Criminal Code. According to the Court, the notion of "sexual activities" referred to in Article 600-ter, seventh paragraph, must be interpreted broadly. This approach is motivated by the need to protect the psycho-physical integrity of minors from any form of sexual involvement, even when it does not materialize in explicit acts.

In particular, the Court highlighted that the legislator intended to protect minors from any exploitation, including simulated sexual activities, which could still compromise their well-being. This broadening of the notion of "sexual activities" is fundamental to ensuring adequate protection, in a context where technologies and communication practices can easily elude more restrictive interpretations.

Implications of the Judgment

The implications of this judgment are significant and deserve attention, especially for legal professionals and those involved in child protection. The distinction between the notions of "sexual activities" and "sexual act" is not merely theoretical but has practical repercussions on how child pornography cases are prosecuted.

• The protection of minors is extended to situations that previously might not have been considered criminally relevant.
• Investigations and prosecutions for child pornography offences may increase, including cases of simulated sexual activities.
• Greater commitment is required in training legal operators to correctly interpret these notions and apply them in judicial proceedings.

Offence of child pornography - "Sexual activities" - Notion - Differences with the notion of "sexual act" under Article 609-bis of the Criminal Code - Reasons. In the context of child pornography, the notion of "sexual activities" under Article 600-ter, seventh paragraph, of the Criminal Code must be understood more broadly than the notion of "sexual act" relevant under Article 609-bis of the Criminal Code, given that the legislator, in order to protect the psycho-physical integrity of the minor from sexual involvement of any kind, intended to preserve them from any exploitation that could involve them on a sexual level, not only through its correlation with explicit and concrete sexual acts, but also through its reference to merely simulated sexual activities.

Conclusions

Judgment No. 50298 of 2023 represents an important step in Italian jurisprudence concerning the protection of minors. Its expansive interpretation of the notion of "sexual activities" serves as a warning to all those operating in the field of criminal law and child protection. It is crucial for sector operators to understand the implications of this judgment, adapting their practices and legal strategies to ensure efficient and adequate protection. Only in this way can the integrity and well-being of the most vulnerable in our society truly be safeguarded.