Competition of Aggravating Circumstances in Crimes Against Pregnant Women: Analysis of Cassation Ruling No. 21525 of 2025

The Italian criminal justice system is constantly called upon to evolve to offer increasingly effective protection to victims of crimes, particularly when they are in conditions of particular vulnerability. A significant example of this jurisprudential commitment is represented by the recent ruling of the Court of Cassation No. 21525, filed on June 6, 2025, which addressed the delicate issue of the concurrence of two specific aggravating circumstances in crimes committed against pregnant individuals. This decision, authored by Dr. M. M. M., is of crucial importance for understanding the scope of protection offered by our legal system.

Context of the Decision: Ruling No. 21525/2025

The procedural case that led to the ruling in question originated from a decision by the Court of Assizes of Appeal of Bolzano on March 5, 2024, which had rejected the appeal filed by the defendant Z. P.M. T. L. The core of the issue concerned the joint applicability of two aggravating circumstances provided for by Article 61 of the Criminal Code: No. 11-quinquies and No. 5. The former refers to non-negligent crimes against life, individual integrity, or personal liberty committed against a pregnant person, while the latter concerns having taken advantage of circumstances of time, place, or person that hindered public or private defense. The Court of Cassation was called upon to clarify whether these two aggravating circumstances could concur or if, instead, one absorbed the other.

Aggravating Circumstances Under Comparison: Art. 61 No. 11-quinquies and Art. 61 No. 5 c.p.

To fully understand the scope of the decision, it is essential to analyze the two aggravating circumstances at play:

• Art. 61, first paragraph, No. 11-quinquies) c.p.: This circumstance was introduced to strengthen the protection of pregnant women, recognizing the particular condition of physical and psychological vulnerability that this state entails. The aggravating circumstance applies to non-negligent crimes against life, individual integrity, or personal liberty, highlighting the legislator's intent to protect not only the woman but, indirectly, also the unborn child.
• Art. 61, first paragraph, No. 5) c.p. (diminished defense): This more general aggravating circumstance applies when the perpetrator has taken advantage of circumstances that made the victim's defense more difficult. Such circumstances can be objective (e.g., isolated location, nighttime) or subjective (e.g., advanced age, illness, or, as in this case, a condition of particular physical or psychological fragility of the victim).

The question was whether the condition of pregnancy, already subject to the specific aggravating circumstance No. 11-quinquies, could simultaneously constitute a situation of "diminished defense" under No. 5, thus avoiding a double penalty for the same aspect.

The Cassation Ruling and its Significance

In matters of circumstances, the common aggravating circumstance provided for by art. 61, first paragraph, No. 11-quinquies), c.p. in the case of a non-negligent crime against life, individual integrity, or personal liberty committed against a pregnant person, concurs with that of diminished defense under art. 61, first paragraph, No. 5), c.p., because the former is linked to the subjective state of pregnancy of the crime victim, and aims to protect, in addition to the psychological and physical autonomy of the victim herself, also the integrity of the unborn child, while the latter presupposes that the action was facilitated by the victim's greater psychological and physical fragility, which the perpetrator took advantage of to carry out the harmful conduct.

With this ruling, the Supreme Court rejected the interpretation that would have seen the two aggravating circumstances as alternative or mutually exclusive. The ruling unequivocally clarifies that concurrence is not only possible but necessary, given the different nature and purpose of the two circumstances. The aggravating circumstance under No. 11-quinquies is intrinsically linked to the subjective state of pregnancy of the victim and the need to protect not only her physical and psychological autonomy but also the integrity of the unborn child. It is a protection that arises from the condition itself, regardless of whether the perpetrator actively took advantage of it.

On the other hand, the aggravating circumstance of diminished defense (No. 5) requires an additional element: that the perpetrator knowingly and voluntarily exploited the victim's greater fragility (physical or psychological), made evident or accentuated precisely by the state of pregnancy, to facilitate the commission of the crime. The mere existence of the state of pregnancy is not sufficient; proof is required that the perpetrator acted by taking advantage of this fragility to commit the harmful act. The Cassation Court thus highlighted the complementarity and non-overlap of the two circumstances, which protect different interests and aspects of the criminal conduct and the victim's condition.

Enhanced Protection: The Reasons for Concurrence

The Cassation ruling is part of a normative and jurisprudential framework aimed at ensuring enhanced protection for vulnerable victims. The general principle of the concurrence of circumstances, governed by art. 15 c.p., allows for the cumulative application of multiple aggravating circumstances when they are not special or heterogeneous. In this specific case, the Court recognized that the two aggravating circumstances are not identical, nor does one absorb the other. The aggravating circumstance of pregnancy protects the intrinsic condition of the woman and the unborn child, while that of diminished defense penalizes the perpetrator's conduct of abusing this condition to facilitate the crime. This means that the legal system intends to punish both the choice to target a pregnant person (No. 11-quinquies) and the further reprehensibility represented by having taken advantage of the weakness that such a state may entail (No. 5).

This interpretation is in line with consistent prior case law, such as ruling No. 350 of 2016, and with decisions of the United Sections (such as No. 40275 of 2021), which have often reiterated the need to carefully assess the specificity of each aggravating circumstance to avoid reductive interpretations that could weaken criminal protection.

Conclusions: A Step Forward in Protecting Vulnerable Victims

Ruling No. 21525 of 2025 by the Court of Cassation represents an important confirmation of the jurisprudential trend aimed at ensuring maximum protection for pregnant individuals. By affirming the possibility of concurrence between the specific aggravating circumstance under art. 61, first paragraph, No. 11-quinquies) c.p. and that of diminished defense under art. 61, first paragraph, No. 5) c.p., the Supreme Court has reiterated the intent of our legal system to more rigorously punish criminal behaviors that exploit the vulnerability of others. This ruling not only strengthens the protection of pregnant women and unborn children but also offers a clear indication for legal professionals on the correct and precise application of aggravating circumstances, contributing to a fairer and more effective application of criminal law.