BULLYING

PINK BULLYING

It differs from the first in that the "bulla" usually has a greater inclination to manipulation; uses a type of aggression that is mostly verbal and psychological (in fact, we also speak of "psychological bullying") aimed at the exclusion of the victim. Harassment also translates into mockery on the body, on the way of dressing, through gossip, glances, laughter that the unfortunate receives every day, staying out of any group. The consequences are devastating. On the juridical level, the first real problem that arises in speaking of such an argument is that relating to its classification in the current criminal legal system. An ad hoc criminal case that disciplines and sanctions it is missing in the Italian legal system. In truth, the provision of a legal definition of bullying has not been necessary up to now since the various behaviors carried out by minors have always found the possibility of being evaluated in the same way as other crimes already present in the criminal code.

REGULATIONS

Even in Europe there is no reference legislation and the Judges of the Member States trace the criminal expressions of bullying to other types of crime already existing, which now manifest themselves in forms of physical aggression (injuries, beatings, private violence), now psychic aggression ( threat, defamation), now virtual (cyberbullying) or even in real aggression (damages). Yes, there is no doubt, we are faced with illicit or illegitimate behavior and, the spread of bullying with the increase in episodes of violence among the youngest, has led institutions, national and supranational legislators, doctrine and jurisprudence, to question and answer new questions, first of all the following: a minor who bullies with his peers or with other children considered different, has the maturity to understand the meaning of his actions and to understand that its conduct can constitute crimes? Why these questions? It's very simple. Because if the answer were affirmative, there would be no obstacles to applying the same sanctioning treatment to the minor as provided in general by the legal system, for all the imputable persons. But if this is true, then another question must be answered: is the current legislation adequate? Or is a legislative intervention necessary that takes into account the precocious maturity that is found in young people today?

CRITABLE?

As is known, our criminal law considers the minor not to be charged. To say it is the art. 85 c.p. according to which the person responsible is the one who at the time of the commission of the fact was "capable of understanding and willing". The law summarizes the complex of normal physical-psychological conditions that must exist so that it is possible to attribute to a subject the responsibility for a criminally relevant fact, thus making him worthy of punishment. The ability to understand refers to the ability of each person to understand the reality, meaning and consequences of their behavior. On the other hand, the ability to will is understood as the individual's attitude to self-determination, that is, the ability of the individual, in the face of a multiplicity of possible behaviors to adopt, to choose which behaviors to prefer. For the purposes of a positive judgment on the agent's liability, the existence of both the two requirements is required at the time of the commission of the fact. Such a subjective condition is presumed in the person who has reached the age of eighteen.

EXCLUSIONS FROM IMPUTABILITY

The criminal law, however, provides for specific causes for the exclusion of imputability: such are total mental illness, chronic intoxication from drugs or alcohol as well as the minor age. Well, precisely in relation to this last profile, in general, when we speak of a minor, we also speak of natural incapacity, since the ability to understand and want presupposes a certain degree of psycho-physical development of the child. 'agent. (MANTOVANI). The problem then lies in establishing what the age limit is, starting from which the subject can be considered capable of understanding and willing. The solution offered by our criminal law is the following:

• an absolute presumption of incapacity is envisaged for the minor under the age of 14, "... the person who, at the time when he committed the crime, had not turned fourteen years old" (art. 97 of the criminal code)
• for those over the age of 18 a presumption of ability due to presumed maturity
• minors between the ages of 14 and 18, no presumption of capacity or incapacity, as the judge, even ex officio, must ascertain whether or not they are attributable on a case-by-case basis. "... it is immutable who, at the moment in which he committed the crime, was fourteen years old, but not yet eighteen, if he had the ability to understand and want, but the penalty has decreased" (Article 98 of the Criminal Code)

LEGISLATIVE AMENDMENT

Having said that, also following the latest and increasingly frequent episodes of news that see minors involved in bullying, some authors have firmly supported the need for a legislative change aimed at obtaining a lowering of the age to be considered attributable and that adequately reflect the precocity of intellectual development which today, the behavioral sciences tend to consider an incontrovertible fact (MARINUCCI-DOLCINI, Manual of criminal law, Milan, 2004, 227). A desirable intervention would also be that aimed at preparing a provision that specifically contemplates the crime in question and as such sanctions it. It has been said that our criminal system does not regulate the crime of bullying among the existing criminal figures and, in truth, even the jurisprudence that in recent years has had a lot to do with such episodes has been careful not to define it. . Only rarely have the judges talked about bullying, using this terminology within their decisions, but always tracing it back to other known criminal figures. However, the inertia of the legislator did not prevent convictions. Slaps, punches, tugs, shoves are the typical acts that the bully directs to peers or other minors, not necessarily smaller than him, since the victim can also be configured in an older child.

PERSEEN

Well, these attitudes will all fall under the criminal offense of "beatings" (Article 581 of the criminal code). The concept of beating is actually very broad and includes all those behaviors that are expressed in the act of giving the victim a painful sensation without causing any disease in the body or mind. Where, on the other hand, the blows, slaps, shoves and tugs should cause the victim, in addition to the painful sensation, also a physical or psychological illness, he will be liable for the most serious crime of personal injury, governed by art. 528 c.p. The weapon, however, most frequently used by bullies is the threat. Threatens to harm the victim or someone close to him (usually this is identified in the person of a brother, sister, parent, or even your best friend). Well in this case, the protection is provided by art. 612 c.p. ("Threat"). According to authoritative doctrine (ANTOLISEI) there is a threat, whenever the perpetrator of the crime envisages in his victim, the possibility of a future and unjust evil.

CONSCIOUSNESS AND WILL

The jurisprudence, on this point, added that, for the crime in question to manifest itself, the conscience and willingness to threaten others with unjust damage is sufficient, causing the victim a state of intimidation, such as to disturb or in any case limit and / or decrease the one's moral freedom, without the intention of translating the threatened evil into action. Bullying can also integrate the newly created criminal case, the crime of "persecutory acts", better known as stalking. The offense, introduced by the legislator in 2009, in art. 612-bis of the Criminal Code, penalizes anyone who, with repeated conduct, threatens or harasses someone in such a way as to cause in the same, a persistent and serious state of anxiety or fear or to generate a well-founded fear for the safety of himself or of a close relative or in a person linked to him by an emotional relationship or by forcing him to alter his habits of life.

CHANGED LIVING HABITS

Abstractly, bullying can lead to all three of the above events. With regard to the first, it is quite possible that the minor victim of bullying reports on a psychological and / or physical level the pathologies deriving from the persistent and severe state of fear and anxiety. As for the second of the reported events, the well-founded fear for one's own safety or the safety of a person close to him, even in this hypothesis it is likely that the bully with repeated conduct (whether they are threats, beatings, insults etc.) can induce in the the less the prospect of a future and unjust evil. The news and the testimonies confirm this. It is often said of children who, due to repeated and repeated abusive behavior towards themselves, change their habits of life, (for example, depending on the place where such behaviors occur - school, soccer, gym, the minor will tend to refuse to attend them).

AGGRAVATING

Enough to talk about stalking even where the conduct involves minors, so as to prepare the sanctioning protection provided for it. It should be noted that on a procedural level, in the case of persecutory acts among minors, the offense can be prosecuted ex officio. On the substantive level, however, the very fact that the victim is a minor, this triggers for the agent (also a minor) the aggravating circumstance referred to in the third paragraph of art. 612-bis of the Criminal Code, i.e. an increase of up to half. A different and much debated issue is the possibility, or rather the opportunity to apply also to the minor (just as in the hypothesis of a traditional crime) the precautionary measure of the prohibition of approaching the places frequented by the victim (art. 282-ter of the Italian Criminal Code). Art. 19 of the Presidential Decree n. 448 of 1988 on "Precautionary measures for minors" establishes in paragraph 1 that personal precautionary measures other than those provided for in this chapter cannot be applied to the minor accused. The possibility is therefore excluded.

EXTORTION

Well, the review of the criminal hypotheses configuring bullying certainly does not end with what has been said so far. The possibility is also that of incurring the further crime of extortion ('Article 629 of the Criminal Code) "Anyone who, by violence or threat, forcing someone to do or obtain something, procures for himself or others an unfair profit to the detriment of others" . (See also Bari Juvenile Court, 7 November 2006). Not only. But the most serious and widespread form among the very young is that which has as its object the performance of sexual acts. The victim of bullying who can indifferently be male or female, handicapped or not, is often forced to perform or undergo sexual acts. In this sense, it falls within the crime of sexual violence, governed by art. 609 bis c.p. The law, in particular, punishes:

• The fact of someone who, by violence or threats or by abuse of authority, forces someone to perform or suffer sexual acts
• The fact of someone who induces someone to perform or suffer sexual acts by abusing the physical or mental inferiority of the injured person at the time of the fact
• The fact of someone who induces someone to perform or suffer sexual acts, by misleading the injured person, for having replaced the guilty person for another person

SEXUAL VIOLENCE

Generally the bully tends to carry out the first two of the indicated conducts. In the case of group sexual violence (Article 609 of the Criminal Code) instead, it is necessary that the conduct aimed at violating the sexual freedom of the passive subject comes from all the participants or, even if it comes from only one, from some of the participants, it is necessary that the others are aware of the lack of spontaneous consent to the sexual activity of the passive subject (C. PUZZO). Those analyzed so far are all “traditional” crime figures; today, however, the pressing spread of new communication tools has also led to bullying, a whole series of evolutions, first of all cyberbullying. According to the definition provided to us by the communications police, the phenomenon refers to that set of bullying, harassment, threat or insult repeated over time, carried out by minors against other minors, however carried out through electronic means and / or on virtual spaces (communications police).

CYBERBULLYING

In particular, cyberbullying consists of attitudes and behaviors aimed at offending, frightening, humiliating the victim through electronic means (M. BOSCO). What distinguishes it are precisely the methods and tools used by the agent, to be identified mainly in the use of new technologies, but above all in the use of the Internet and social networks. In general, the victim is targeted through: sending unwanted text messages; offensive or threatening phone calls; the forwarding of equally offensive or threatening e-mails; uploading videos or movies on Youtube, or even on social networks (Facebook, Twitter etc.); or again, sending messages and uploading posts with offensive content to Facebook or similar. With regard to cyberbullying, all the same issues already addressed in the field of "traditional" bullying arise again, first of all the absence of an ad hoc incriminating rule that disciplines and sanctions it, so that also in this case it will be necessary to resort to criminal hypotheses already present in the Italian criminal law scene. But even in this case, the inertia of the legislator did not prevent it from reaching convictions.

CYBERBULLYING

In particular, cyberbullying consists of attitudes and behaviors aimed at offending, frightening, humiliating the victim through electronic means (M. BOSCO). What distinguishes it are precisely the methods and tools used by the agent, to be identified mainly in the use of new technologies, but above all in the use of the Internet and social networks. In general, the victim is targeted through: sending unwanted text messages; offensive or threatening phone calls; the forwarding of equally offensive or threatening e-mails; uploading videos or movies on Youtube, or even on social networks (Facebook, Twitter etc.); or again, sending messages and uploading posts with offensive content to Facebook or similar. With regard to cyberbullying, all the same issues already addressed in the field of "traditional" bullying arise again, first of all the absence of an ad hoc incriminating rule that disciplines and sanctions it, so that also in this case it will be necessary to resort to criminal hypotheses already present in the Italian criminal law scene. But even in this case, the inertia of the legislator did not prevent it from reaching convictions.

ONLINE DEFAMATION

In particular, in 2010 an important ruling dealt with the phenomenon. It was an episode of online defamation perpetrated against a disabled child by his classmates. The matter was submitted to the jurisdiction of the Court of Milan. The judges of the Lombard capital, however, had no way of ruling on the matter, due to the referral of the complaint made by the parents of the victim. Nonetheless, the judicial episode as well as being of extreme social and media interest, laid the foundations for a serious reflection on cyberbullying, defined by authoritative doctrine as one of the most alarming manifestations of the network, so much so that a intervention of the legislator in this sense (M. BOSCO). Bullying via the web or via smartphone is one of the indirect forms of bullying. This was said by the Ministry of Education with a directive that defined it as an indirect form of prevarication: "the indirect form of prevarication concerns a series of rumors about the victim, the exclusion from the peer group, the isolation, the spread of slander and gossip; other defined modalities of "cyberbullying" understood the latter as a particular type of intentional aggression carried out through electronic forms. This new form of prevarication, which does not allow those who suffer it to escape or hide and involves an ever larger number of victims, is constantly increasing and does not yet have a defined context (…) ».

DEFAMATION

It is true that there is still no defined context in this regard and it is customary to resort to online defamation crimes; the crime of harassment or insult by telephone; and also the crime of stalking. With respect to online defamation, an important sentence of the Supreme Court clarified that "(...) the placing of writings damaging to the reputation of others in the Internet system integrates the crime of aggravated defamation (Article 595 of the Criminal Code, paragraph 3). It is consumed even if the communication with several people and / or their perception of the message are not contemporary (with the transmission) and contextual (with each other), since the recipients may even be at a great distance from each other or from each other. agent. But, while in the case of defamation, committed for example by post, telegram, or email, it is necessary for the agent to compile and send a series of messages to multiple recipients, in the event that he creates and uses a web space, the communication it must be considered potentially erga omnes, albeit in the restricted (but not too much!) context of all those who have the tools, the technical capacity, and in the case of paid sites, the legitimacy to connect (Cass. Section, V, June 21, 2006, n. 25875; Cass. Section IV, November 17, 2000, n. 4741).

CYBERSTALKING

Cyberbullying can also be cyberstalking. The latter would precisely identify that form of stalking that manifests itself through the use of new technologies in a persecutory and nagging function against the taxable person (DI NICOLA, NATALINI, PUZZO). If this is true, it is not excluded that the persecutory acts perpetrated by minors to the detriment of other minors and, integrated by the use of new technologies, constitute hypotheses of stalking, provided that they are aimed at provoking at least one of the hypotheses abstractly provided for by art. . 612- bis c.p. (see above). On the other hand, the type of acts carried out by the cyberbully is not relevant, as they may well be of any kind (for example, sending emails, messages through social networks, publishing videos on Facebook, Twitter, Youtube etc.). It has already been said with regard to the imputability or otherwise of the minor, then it remains only to add a further clarification, this time with reference to the person offended by the crime (also a minor), that is the possibility for him to personally file a complaint .

RIGHT TO SAY

Art. 120 paragraph 2 of the c.p. clarifies that "For minors under the age of fourteen, (...) the right of complaint is exercised by the parent (...)". While, "Minors who have reached the age of fourteen, (...) can exercise the right of complaint, and can also in their stead, the parents and or guardian can exercise it, despite any contrary declaration of will, express or tacit, of the minor ( ...) "(paragraph 3). It is clear that the legislator wanted to recognize the parent (or guardian) an autonomous and distinct right of complaint, even in the event of an express manifestation of the contrary will of their child and even if the latter has already exercised it. DBD Investigazioni can help you with this and more