INFAD (Apr 2018)
Child sexual abuse and the guarantees of a fair criminal trial
Abstract
Criminal proceedings concerning the assessment of sexual abusive behaviour affecting minors includes, among its most delicate stages, the collection of the young victim’s statements, especially if the victims are in their earliest years. The collection of a minor’s testimony must follow rules and procedures whose main goal is to safeguard the minor. Up to now, Italian Criminal Justice System does not provide an organic system for the Young victim’s protection; on the part of the legislator, there is a lack of specific rules and regolations for the minor’s testimony. According to Article 196, paragraph 1 and 2 of the Italian Code of Criminal Procedures, “every person is competent to testify,” but “in order to evaluate the witness’ statement, the judge can order appropriate verifications using all lawful means, even ex officio.” More effectively, Article 10 of the Carta of Noto recommend, for children under 12 and apart from exceptional cases, “that a valuation must always occur in order to verify the victim’s fitness to testify about the matters,” unless the judge can evaluate the reliability of the testimony. Therefore, is it possible for the judge to establish the truthfulness of the minor’s testimony apart from a technical advice of an expert, that is without making a psychological evaluation of the child first?” The prevailing jurisprudential orientation in recent years confirms the prevalence of the so-called principle of the all-encompassing evaluation, whereby “on the subject of sexual offenses against young children, it is illegal, for violation of the principle of the formation of evidence in contradictory, the refusal of judge to arrange a psychological examination, in order to ascertain the adherence to the reality or not of the narration of the facts, depending on possible fanciful elaborations of the age or of the personological structure of the minor2”.
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