Is sex a right? Life as a prisoner, love is a banArticle 18 of the prison system prohibits intimate encounters with partners. The case of a prisoner in Umbria before the Constitutional Court
Should male and female prisoners be given the opportunity to have “private” moments with their wives, husbands or boyfriends? And is it right to provide secluded places in penitentiaries for amorous rendezvous between those in confinement and the partner who comes to visit? In Italy the debate has (re)opened in recent days, after a man detained in Umbria had his request to the prison administration for "intimate" talks with his partner rejected.
Article 18 of the penitentiary system, in fact, forbids those confined to prison (even if not subjected to the harsh regime of 41 bis) to remain alone with their partner, away from prying eyes. But the story led the supervisory judge of Spoleto, Fabio Gianfilippi, to even address the Constitutional Court, raising the question of legitimacy. "The interested party regrets the prohibition imposed on him by the administration to carry out intimate conversations with his family members and in particular with his partner", writes the magistrate to the constitutional judges, with the doubt that the above prohibition may be contrary to the rights established by the Charter, since, Gianfilippi continues, «such a radical amputation of a constitutive element of the personality such as the sexual dimension of affectivity ends up configuring a form of physical and moral violence against the detained person».
In the world
While waiting for the response, the Guarantor for Lazio prisoners Stefano Anastasia intervened on the case, saying he was convinced that "the recognition of the right to sexuality of prisoners would not only favor their personal growth, but would benefit the entire prison institution because it would improve relations with prison police officers and would help the general atmosphere of life in prison". Anastasia herself recalls that "what is allowed to prisoners in France, Switzerland, Austria, Slovenia or Spain, and overall in 31 European countries (but also in India, Mexico, Israel, Canada) is denied to Italians". Not only that: «There are also in this sense the Recommendations of the Council of Europe or of the European Parliament which call for conjugal visits to prisoners. And there is also the European Court of Human Rights, the international tribunal in Strasbourg, to express its appreciation for states that provide for intimate conversations and the exercise of affectivity, including of a sexual nature. Finally, there is a recent ruling from 2021 which reaffirms this orientation.
The law is missing
As far as our country is concerned, however, «already in 1999», Anastasia recalls, «the then head of the Dap Alessandro Margara proposed the revision of the prison system with the provision of ad hoc areas for meetings not on sight: the Council of The state replied that the regulation could not be changed, but a law had to be enacted. After more than twenty years we are still here to discuss it». Again: «Two bills advanced by the regional councils of Tuscany and Lazio, under discussion in the Senate in the past legislature, have not completed the process. The bill approved with a motion of the Lazio Regional Council, in particular, started from the research of the University of Cassino and southern Lazio and was implemented with the sharing and support of the Guarantor of prisoners and the Presidency of the Regional Council ».
Public and private
In short, «there have been talks of giving Italian prisoners privacy breaks for years. But the law forbids it, because the prison regulations impose that the conversations of the prisoner with his or her partner, even if granted in separate rooms, must always be subjected to the supervision of the agents. Prison - consequently - is never considered a private place, but a public place by definition. And consequently sex in a public place cannot be done because, strictly speaking, it is a crime in itself ». The Guarantor of the prisoners of Umbria, as well as jurist, Giuseppe Caforio, also expressed himself on the case, according to which there would be many people in Italy ready to ask to have relations with their partner or partner. «The times», says Caforio, «are ripe to challenge the legislation. Emotional relationships are to be understood as inviolable rights of man and, therefore, to be made possible even in prison". However, "an organic and thought-out law is needed, which allows the creation of special spaces".
Sex prohibited for prisoners in Italy, but a bill exists: it is the bill, adopted by the Lazio regional council and presented to the Chambers in February 2022 and aimed at the "Protection of emotional relationships and parenting of restricted persons".
The provision proposes the setting up of a sort of love room for intimate encounters between the inmates and their partners, as is already the case, for example, in Norway, Denmark, Germany, Holland, Belgium, France, Spain, to mention only EU countries. "Dedicated areas in prisons", reads the text of the proposal, "in which prisoners can exercise their right to affectivity and sexuality, with respect for confidentiality".
From 6 to 24 hours
These areas, it is specified, must be «places suitable for personal and family relationships and not just for physical encounters: too short a time, in fact, risks turning the visit into a humiliating and artificial experience. For this reason it was intended to provide that the visit could take place within a sufficiently large period of time from 6 to 24 hours".
Furthermore, the possibility of accessing it could be denied in the event of "prevaricating or violent behavior or when there are concrete elements to believe that the request has a purpose other than that of exercising the emotional relationship".
An initial allocation had also been hypothesized for the construction of the "love houses" in prisons: approximately 28 million euros. But the proposal remained a dead letter.