Domestic Abuse and the Presence of a Minor: The Crucial Interpretation of the Court of Cassation with Ruling 9802/2025

The protection of the most vulnerable individuals within the family unit is an absolute priority for our legal system. In this context, the crime of domestic abuse, governed by Article 572 of the Criminal Code, assumes particular relevance, especially when vexatious conduct occurs in the presence of minors. The Court of Cassation, with its recent ruling no. 9802, filed on March 11, 2025, has provided a fundamental interpretation on the configurability of the aggravating circumstance of the act committed "in the presence" of a minor, clarifying a crucial aspect that further strengthens the protection of children.

The Crime of Abuse and the Aggravating Circumstance of the Minor's Presence

The crime of abuse against family members and cohabitants punishes anyone who abuses a family member or cohabitant, or a person subject to their authority or entrusted to them for reasons of education, instruction, care, supervision, or custody, or for the exercise of a profession or trade. This is a habitual crime, perfected by a plurality of harmful conduct, even of different natures (physical, psychological, economic), which create a climate of oppression and suffering. The second paragraph of Article 572 of the Criminal Code provides for a specific aggravating circumstance if the act is committed "in the presence or to the detriment of a minor, a pregnant woman, or a person with a disability." This aggravating circumstance reflects the greater gravity of the social disvalue of the conduct, given the particular vulnerability of the victims.

Ruling 9802/2025: Indirect Perception is Sufficient

The interpretative issue on which the Supreme Court ruled concerned precisely the meaning of "in the presence" of a minor. Was it necessary for the minor to physically witness the violence? Or was indirect perception sufficient? Ruling no. 9802/2025, issued by the Third Criminal Section and reported by Dr. G. D., provided a clear and unequivocal answer, rejecting the appeal of the defendant M. P.M. E. against the ruling of the Court of Appeal of Rome of December 13, 2023.

In the context of abuse against family members and cohabitants, the configurability of the aggravating circumstance of the act committed "in the presence" of a minor does not require the vexatious conduct to be seen by the latter, it being sufficient that it is even only perceived by them. (Case in which the minor, who was sleeping in a room of the house, was woken up by the screams of the victim, and started crying).

This maxim is of fundamental importance. The Court of Cassation establishes that it is not essential for the minor to be an "eyewitness" to the violence. It is enough that the vexatious conduct is "perceived" by them, even if not directly seen. The example provided in the case is emblematic: a minor sleeping in another room but woken up by the victim's screams and starting to cry. This scenario, while not involving direct sight, fully constitutes the aggravating circumstance. The Court therefore recognizes the profound psychological and traumatic impact that such events have on children, even when they are not physically present at the scene of the violence. It is not the sight that determines the trauma, but the awareness, even if only auditory or emotional, that something serious and frightening is happening.

Practical Implications for the Protection of Minors

• Broadens the scope of protection: Recognizes that domestic violence has detrimental effects on minors even when they are not direct spectators, extending protection to previously ambiguous situations.
• Facilitates proof: It will no longer be necessary to prove that the minor saw the violence, but it will be sufficient to prove that they perceived it, for example, through noises, screams, crying, or a change in the family atmosphere.
• Emphasizes psychological damage: It highlights the psychological trauma that the perception of violence generates in children, damage that is often more insidious and lasting than physical damage.
• Deters violence: The message is clear: any form of domestic violence, even if not openly displayed, will have more serious consequences if a minor is present in the environment, even if in another room.

This ruling aligns with established jurisprudence that, over time, has increasingly valued the position of the minor as a vulnerable subject to be protected in every context, especially the family one, where they should find maximum refuge and security. Article 572 of the Criminal Code is designed to protect the psychophysical integrity of the victim and the serenity of the family environment, values that are severely compromised by the presence of violence, even if only perceived, by a minor.

Conclusions: A Step Forward in the Protection of the Vulnerable

Ruling no. 9802/2025 of the Court of Cassation represents an important step forward in the protection of minors who are victims of domestic violence. By reiterating that the perception, and not just direct sight, of vexatious conduct is sufficient to constitute the aggravating circumstance of the act committed "in the presence" of a minor, the Supreme Court sends a strong signal: the law is attentive to the psychological well-being of children and punishes with greater severity those who violate the serenity of the domestic hearth. For a Law Firm, understanding and applying these principles is essential to offering effective and sensitive protection to victims, ensuring that justice takes into account the complexity and severity of the trauma suffered by the most defenseless.