Conference Program

In Italy, the legal debate on the amendment to Article 609-bis of the Criminal Code concerning sexual violence is currently stalled on the proposal of the Chair of the Justice Committee, Giulia Bongiorno: to establish the crime, it is not necessary to assess the possible presence of ‘free and current consent’, but rather the absence of the ‘will of the person’ to perform that particular act, giving importance to dissent.

The difference between these two expressions is not merely terminological but also prompts reflection on the symbolic level, which in turn interacts with the technical level. The concept of consent would open the way to questioning cultural models that portray women as passive subjects in sexual relationships, whose participation is assumed and men as active subjects, whose proactivity is taken for granted. The idea of sexuality that consent would express could lead to a renewal of gender roles, moving away from stereotypes and prejudices and towards a dynamic that is less susceptible to power imbalances, though still capable of improvement (Borrello 2023; Millefiorini 2024). From a technical perspective, this focus would also align with Article 36 of the Istanbul Convention (2011), ratified by Italy in 2013. Referring just to the ‘will of the person’ risks relegating these cultural models to the background. Also, it could allow for ex post reconstructions of will based on gender stereotypes, social expectations, or ambiguous interpretations of behaviour. In this sense, the choice of wording has a direct impact on regulatory technique: while ‘consent’ directs the assessment towards a paradigm shift, ‘will’ allows for flexible assessments that can compromise legal certainty and the preventive function of criminal law.

This contribution aims to explore this reflection further by considering the two expressions not merely as technical tools but as symbolic devices: ‘consent’ and ‘will of the person’ become two discursive categories that contribute to producing and legitimising, in the legal and social spheres, certain configurations of gender and power dynamics. Conversely, it will be considered how these configurations influence the push towards adopting ‘consent’ or ‘personal will’, highlighting what these efforts reveal about the current sexual order. To do so, this paper examines these categories through the lens of ‘grey areas’, that is, situations of sexual interaction that cannot be clearly classified as either consent or dissent (Graf e Johnson, 2020; Gunnarsson 2018, 2025). In this sense, ‘grey areas’ of sexual interaction could reveal how the legal recognition of consent and/or dissent is shaped by gendered interpretive frameworks that normalise stereotypical expectations, thereby constraining the intelligibility of certain experiences and producing forms of epistemic injustice (Fricker, 2007).