Separating Law From Facts: The Difficulties Faced By The Italian Corte Di Cassazione In An Appeal For Illogicality Of Reasoning
In: The international & comparative law quarterly: ICLQ, Band 49, Heft 3, S. 709-719
ISSN: 1471-6895
The recent judgment of the Corte di cassazione, Italy's highest appeal court in civil and criminal matters, in the so-called "jeans rape case" has caused much controversy and attracted much media attention both in Italy and abroad. The Corte di cassazione has been showered with criticism for purportedly establishing a "jeans alibi", according to which a woman cannot be raped if she is wearing jeans as she must have consented to their removal. However, this judgment is of significance not merely for this statement but because it is particularly demonstrative of the difficulties faced by the Corte di cassazione in separating law from fact in an appeal on the grounds of illogicality of the reasoning given by the lower court. The Corte has been subject to academic criticism recently for exceeding its competence to review on a question of law and entering into the realm of the merits, criticism which this judgment has undoubtedly fuelled. The aim of this article is to explore the nature of the Corte di cassazione and, in providing a critical analysis of the "jeans rape" judgment, to examine the difficulties inherent within this particular ground of appeal.