Protecting relationships
Love, fraud, revenge porn. One second to become a victim, at least five years to get an unfair justice. Sex and feelings experienced ‘remotely’ increase crime. And the law is always one step behind
A common scene in families and schools: relationships via smartphone no longer facilitate physical relationships, but replace them.
Years of predominantly written love affairs. It is expected, contemplated, normal for two people to date online. Being in chat rooms and not seeing each other. Being in chat rooms and staying there. This is the premise - delusional or acceptable, it seems to depend on the age - that explains the new things that surround us.
People say: if you find in your hands the mobile phone of anyone in their twenties, you will find a minimum (sometimes more than a minimum) of home-made porn made by the owner. It has something to do with the interest in offline sex that has sunk, but it also has to do with convenience. Seeing each other at home, from the couch, is easy to do with all the benefits and no investment of time and
effort. Of course, the argument about the virtual world would be even more articulated: images have replaced the people they represent. Instagram for instance gives a continuous bordering-on-porn imagery, the pattern is the hyper-sexualised and unreal cartoon of the Kardashian-Jenner and the other counterparts, whether they are singers, pop stars or creators, as the famous people are called.
To be even more precise on the sentimental trend, one must necessarily list the most frequent of contemporary relationships, called situationship.
An untranslatable word, a middle way between liking and disliking. It must also be admitted that non-love has existed at least as long as the Greek classic, even going as far back as the Aeneid, where Dido did not die by chance. But current reference, situationship, has recently been upgraded and has become one of the virtuous words. It is curious that it has happened to the most defective part of the sentimental repertoire: who wants to be in situationships? In that quicksand that passes between friendship and love. The trap they warned you not to fall into. The much more prosaic 1990s defined them as those who want you and then don’t want you. Meanwhile the years pass. But only yours, meanwhile they find someone else, they fall in love but not with you.
Situationship stands for ‘there is nothing between us, though’. Situationship is a good description of the prevailing illusion of these last few years of written love affairs. Years of obsessive text analysis, misunderstandings, trawling, even an ‘ok’ in chat can generate frustration because what is an ‘ok’ if not an unemotional way of telling you: I’ll get you out of my way, I don’t have time for you? To the point that the new generations seem to have declared surrender, love is not for them, too complicated, too many risks, and who wants to suffer. In short, there is a new and unseen acceptance protocol of the relational minimum and the socio-romantic framework that emerges is as follows:
Have you never seen each other? OK.
You just write to each other? Fine.
A stranger asks you for pornographic material suggesting that there is something going on between you since you have been exchanging chats for weeks? Fine.
If this is the background, if ‘The best technologically equipped generation in all of human history is also the generation troubled like no-other by feelings of insecurity and powerlessness’ as Bauman said in a black prediction from years ago, there is very little to be surprised about if the numbers (the latest available are from 2021) record year-on-year increases of more than 100 % of love scam cases compared to the previous year.
The investigative techniques of the postal police are evolving, but too slowly: the latest report on love scams shows that 4,500,000 euros were stolen in one year.
Public and private profiles, the distinction is now meaningless. The posting of personal data and images is still wrongly regulated and often the victim of such abuse becomes guilty.
Love scam. Here is the simplicity of the English language to delineate a complex case: pretending to love a person in order to obtain a financial advantage. It is only fraud, if we move the Anglo-Saxon love scam to the definitions of our penal code.
The interventions of the Supreme Court of Cassation are still few and all of them recent, the case-case being the ruling of the 2nd Criminal Section, 13 June 2019, No. 25165.
In the case in point, a man had simulated a romantic relationship with an older woman: he proposed to her the co-ownership purchase of a flat, he asked for loans, for a co-ownership of company shares. He had managed to obtain a lot of money.
How does this lead to a fraud trial?
First, the objective element of the offense is required (Article 640 of the criminal code). For the conduct to be criminally defined, there must be a precise sequence of tricks or deceptions, and these must be linked to the error of the victim, who, led by fake motivations, makes unforeseen or directly insane asset choices that otherwise would not have been made.
Deception is simulation: it serves to make the false pass as true, it works on the victim’s psyche. Artifice is skill in setting up external reality so as to create even the non-existent. The “cathedrals of lies” of the romantic scams are impressive. The human capacity to believe anything, blinded by love, also.
The law is elastic: the probability that trickery and deception become decisive elements is based on a single fact, the causal link between the action and the event. On the other hand, the victim’s lack of control, diligence and capacity for checking is not relevant. Objectivity is not contemplated, the possibility of asking oneself for lucidity neither. What the law demands - and then that is enough - is the verification that the mistake the victim made was a consequence of those pretense and deceptions.
Love scam, or deception, the cunning technique of pretending to love someone in order to steal their money. It relies on regulatory gaps and victim shaming
Everything is clear, in theory. One might say this is an excellent defense structure. Not only the most beautiful Constitution in the world, the Italian one, but also the legal codes and jurisprudence. One cannot say the same for the other gear, the vital one for laws, enforcement. The application of that perfect rule takes - in our country - five years for three levels of judgment, and this is an optimistic estimate by default, because everything must go perfectly well and one should be assigned to virtuous courts.
Five years for the delineation of fraud and a penalty application. And what are the internet times instead? The same as lightning.
A sentence is the only compensation provided, it is justice that tries to compensate for the inborn defect of trials: no one can go back until the damage that has been done has been repaired. Repair is not possible. The law is the universal admission that we only have the possibility of counting those damages and hopefully providing for some unlikely sort of compensation. A piece of paper with a decision made in the name of the Italian people should restore parity, since it is too late for the previous status quo. This is the best one can obtain. In the name of the Italian people someone - a judge - tells you that you are right. Money, generally little and hardly recoverable, because the other side has already made itself safe by emptying what could be emptied. It ends there, that’s all.
There is no lack of defense, there is a lack of rapid application of that defense. Any judicial office, anywhere in the country, will say the same thing: the solutions are there, there are not enough people.
For the moment we count the damages, the sentimental scams. The Postal Police has so far provided up to the 2021 report and the stolen amounts stand at 4,500,000 euros.
And complaints are still few. The reason, the obvious one: shame. One has to admit to having been a stupid, thoughtless, weak adult. Money at the price of feeling special for someone you have never even seen.
Revenge Porn
Screenshots of private conversations being shared in Whatsapp groups. One of the most common crimes that violates personal correspondence.
In your twenties the lover asks and you give. Without even asking too many questions. Love words are no longer used, send nudes will be the statistically most frequent message between couples, I’m guessing but not too much either. Young, not so young, teenagers, old people. For a few years now, it no longer seems crazy to send free, explicit photos, shoot and send home-made pornographic material. On the naive assumption the stories will last forever. We’ve all been there, only the luckiest of us didn’t have cameras at that age when you don’t perceive any imminent danger.
In Italy, cases of Revenge Porn are worryingly increasing.
This is what the Guarantor Authority for the Protection of Personal Data points out in its Report to Parliament 2024, with 299 notifications of people for the danger of spreading photos and videos with sexually explicit content, ‘doubled compared to last year’.
We waited for some avoidable tragic epilogue to end up in the news, - it was a carnage, in some cases - and then even the Italian Parliament tried to answer the question ‘what do we do with these explicit videos spread without consent? There is little to beat around the bush, this is an endemic phenomenon son of our times and of the fact that it has been established that we are free, very free, to adapt to the new tempora o mores, and if you are against the various freedoms you are a boomer or an ordinary old man or even a fascist, so we keep away from any question of ethics, decorum or common sense. Even if it were a two plus two that even children would understand.
This is how the introduction of the new Article 612-ter in the Penal Code, approved by a relay amendment to the ‘Code Red’ package (Law No. 69 of 19 July 2019), served its purpose.
Some questioned the placement of the rule within a system dedicated to the protection of victims of domestic and gender-based violence. It was said that it would have more prominence and more force in a new Code Title on crimes against sexual privacy. Here is the predominance of technique and doctrine, while the problem spreads in a form already different from the one described by the case law.
The scope of ‘revenge porn’ comes from its Anglo-Saxon definition, which considers a precise and (in the opinion of many) already too narrow hypothesis: the publication, by one of the two members of a couple, of pictures or videos of the ex-partner acquired with the other’s consent and with sexually explicit content, with a precise intent: revenge. The terrifying punishment that follows the break-up of the romantic relationship.
The remedy only came later, when the term ‘revenge porn’ became a catch-all formula for all possibilities of disseminating intimate material. Also in our legal system, the new Article 612-ter of the Penal Code, which punishes ‘with imprisonment from one to six years and a fine ranging from 5,000 euros to 15,000 euros’ those who divulged the material, and also includes the so called ‘second distributors’ of sexually explicit images. Those who do not know the girl in the photo or video but disseminate anyway, for fun.
It is still called Revenge Porn, but the definition, as well as the law, has become deficient in a few years. Because it is no longer even revenge. It is a macabre whim. In some cases it has become extortion: if you give me that much, I won’t publish them.
Even a simple romantic chat, a private video that is not necessarily sexually oriented, if shared with others, may fall within the context of ‘revenge porn’.
Or a brand new crime, mitigated, better managed because the revengers have gotten smart: we are talking about a trivial ex-girlfriend, a high school friend, and you send the video to your best friend and twenty people see it, so they delete it. They’ve become better criminals, they stop in time, they have a secure chat. Or they’re underage.
Privacy is perhaps the newest of rights. The most fragile without a doubt. Right to be left alone. Lost or sold, it no longer matters to wonder about it, because public and private are lost, they overlap all the time. Moving from the highest criminal systems to the minimums of civil law, not even material acquired from an exspouse’s mobile to prove infidelity can be considered a violation.
This is an elementary assumption: the partner cheats, a divorce is requested with charge for infidelity. Where before a private investigator was needed, now a secretly taken photo is enough.
Chats taken from a phone, photographed, sent to another device: it seems like something common, in theory it would have criminal relevance, because this is correspondence and confidentiality is protected by art. 616 of the Penal Code.
Even if it is a criminal offense, the privacy code cannot exclude its usability in civil proceedings for the right of defense (Art. 24 let. f ); Art. 13 and Art. 160 co.6, Legislative Decree no. 196/03. That is to say, if the authenticity is not contested, the magistrate can take screenshots acquired unlawfully and use them to pronounce sentences with a charge (Ord. Court of Turin VII civil section 17.11.11 and sentence 08.05.13, see also Cass. no. 3034/11 and no. 18279/10).
It was almost fifteen years ago that the first judgment warned us of the imminent collapse. Court of Monza, Sez. IV, no. 770/10: ‘Those who decide to become users [of social networks] are well aware not only of the great relational opportunities offered by the site, but also of the potential overflowing of the contents they upload there: to a certain extent it is a risk which is undoubtedly accepted and consciously experienced’.
The disaster has arrived, and so far the law is running after it without much success.
Ester Viola
Lawyer, she is a labour lawyer who sometimes deals with divorces. She has published three novels, L’amore è eterno finché non risponde, Gli spaiati and Voltare pagina, published by Einaudi.