Credits to
Marco Bouchard

About vulnerability in the criminal proceeding

Brief philosophical and legal guide on the vulnerability of victims of crime

Issue 12/2019

Abstract. The (particular) vulnerability of the victim has fully entered the Italian Code of Criminal Procedure with the legislative decree 15 December 2015, n. 212 of implementation of Directive 2012/29/EU establishing minimum standards on the rights, assistance and protection of victims of crime. This article intends to demonstrate that the “culture of the victim” adopted by the Directive (generalist approach, individual assessment, analysis of the risk of victimization, complementarity between security and care) has not yet penetrated into the Italian legal system. That culture is influenced by studies on the vulnerability of a philosophical matrix that deserve the utmost attention also from the justice operators. In this interpretative way it is possible to bridge the delay that afflicts us in the “Italian” conception of the victim, still dependent on objective and, above all, subjective classifications that confirm discriminatory logic rather than removing the inequalities to which the victims of crime are exposed.

This article was submitted for evaluation by two expert reviewers, with a positive outcome.


SUMMARY: 1. The entry of vulnerability in criminal law. – 2. Vulnerability as a classification criterion for groups of people. – 3. Vulnerability as a defective element of the subject’s full autonomy. – 4. On vulnerability: the need for a philosophical contribution. – 4.1. The same person is capable and incapable. – 4.2. Vulnerability is intrinsic exposure to the other. – 4.3. Vulnerability requires a responsive state. – 4.4. Pain as a political resource. – 5. From the philosophy of vulnerability to the vulnerability of the victim. – 6. The limits of the objective/subjective criteria of vulnerability. – 7. The category of particularly vulnerable victims in Italian law. – 8. The differences between Directive 2012/29 / EU and Italian procedural law. – 8.1. European generalist conception and Italian “particularistic” conception. – 8.2. The risk of victimization. – 8.3. Secondary victimization. – 9. The victims between individualism and the right to reparation. – 10. Individual assessment. – 11. Protection measures. – 12. Three questions: who, when and how to assess the (particular) vulnerability? – 12.1. Who carries out the evaluation? – 12.2. When is the assessment performed? – 12.3. How is the assessment performed?


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