Normative evolution of the crime of illicit diffusion of pornographic material

Issue 9/2020

Abstract. This work is focused on the new crime of disseminating pornographic material pursuant to art. 612 ter of the Penal Code, introduced with the recent reform of 2019, with the aim of highlighting its strengths and any critical issues.

This requires, first of all, a more general analysis of the law of 19 July 2019 n. 69 containing «Amendments to the penal code, to the code of criminal procedure and other provisions concerning the protection of victims of domestic and gender-based violence» to understand the intentions of the legislator in depth: in particular, the first paragraph consists in examining the introduced changes both on a substantive and procedural level on domestic violence and gender-based violence. In this regard, the presence of more stringent procedural terms and an even more coordinated collaboration between police and judicial authorities are immediately evident.

Subsequently, in the second paragraph we proceeded to a detailed examination of all the cases – already existing – in which it was possible to trace, before the introduction of the specific crime, the concrete fact of dissemination of pornographic material without the consent of the victim. With reference to the latter, a distinction has also been made according to whether it is a minor or not. The legislator (1998) had already regulated the first hypothesis by introducing the crime of child pornography ex art. 600 ter of the Penal Code; while there was a jagged regulatory framework in the different hypothesis of non-minor victim. The legislator (2019), to overcome this regulatory gap introduced the new art. 612 ter of the Italian Criminal Code, to which the third and final paragraph is dedicated.

SUMMARY: 1. The so-called Red Code – 1.1. Procedural innovations. – 1.2. Substantial innovations. – 1.3. Last jokes. – 2. Pre-reform regulatory framework 2019. – 2.1. The crime of child pornography. – 2.2. When the victim of the illicit dissemination of pornographic material is not a minor. – 3. The new crime of disseminating pornographic material pursuant to art. 612 ter of the criminal code – 3.1. Aggravated hypotheses. – 3.2. The relationship with other crimes (and in particular the relationship with the crime of child pornography). – 4. Concluding remarks.

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