Analysis. In a case that involves ex-Premier Silvio Berlusconi’s infamous sex parties, an Italian court of appeals is asking the Constitutional Court to decide whether a 60-year ban on prostitution is still legal.

Italian court signals end to law and ‘the freedom to prostitute’

It looks like we need to use the English term: not prostitutes, but “sex workers,” or “escorts,” as Patrizia D’Addario called herself some years ago in her book, Prime Minister, Take Your Pleasure: The World’s Most Famous Escort.

And now it turns out that the women who took part in Silvio Berlusconi’s infamous “elegant dinners” in 2008 and 2009, brought there by Gianpaolo Tarantini and his friends, might end up overturning the Merlin Law, which outlaws prostitution in Italy, exactly 60 years after the closure of the brothels and the outlawing of the incitement to, aiding in, and profiting from prostitution. At least this is how the Bari Court of Appeals sees it, which ruled Tuesday to halt the appeal proceedings filed by “Gianpi” Tarantini and the others—including Sabina Began, the “queen bee” of the wild parties in Arcore—and ask the Constitutional Court for a ruling.

“The social phenomenon of the professional prostitution of escorts is the novelty that requires a new examination of the constitutionality of the Merlin Law,” Judge Adolfo Blattmann wrote in the court’s ruling, which will now bring a law that is a part of Italian history before the Constitutional Court.

In the court order that raises the question of the law’s constitutionality, the Bari court takes as its point of departure the freedom of sexual self-determination, citing a 1987 ruling by the Constitutional Court (written by Ugo Spagnoli) to the effect that sexuality is “one of the essential modes of expression of the human person” and that “the right to make use of it freely is undoubtedly an absolute individual right” protected by Article 2 of the Constitution. Therefore, the Bari court argues that the choice to “make use of one’s own bodily nature in exchange for benefits which can be quantified in material terms” would be guaranteed by the Constitution as well, and that “any interference with this right on the part of legislation which conflicts with the fullness of its manifestation” should be considered unconstitutional.  According to this argument, Article 3 of the Merlin Law, and in particular its laying down of punishments for the incitement and abetting of prostitution even when such activity is performed voluntarily and with full knowledge, would have to be struck down.

After all, according to Verdoscia’s attorney, Ascanio Amenduni, “the state must acknowledge that free and voluntary prostitution exists. Moreover, in 2013, the tax law division of the Supreme Court also ruled that revenue from this activity represents taxable income.”

In addition, the Court of Appeals deemed it irrelevant whether Tarantini obtained any economic advantage from his activities, because “if the escort freely chooses to offer sex for money, the one who would help her in the practical realization of her choice would be a benefit rather than a threat to the protected legal interest,” namely the freedom of sexual self-determination. When the escort has made a free choice—otherwise, no question, it would be a case of criminal coercion—punishing the intermediary would amount to “ghettoizing a particular form of self-employment.”

Judge Blattmann does acknowledge that the real purpose of the Merlin Law is not the protection of social mores, which have clearly evolved since it was passed, but precisely “the protection of the freedom and self-determination of the prostitute,” but he argues that “this freedom cannot tolerate restrictions to the fullness of its conscious exercise.”

He arrives at a bold comparison: “The preservation of the principle of free self-determination” and “the need for the protection of human dignity” in the case of escorts deserve the same recognition as was finally obtained “in the Englaro case” (in which the right of the family to discontinue life-supporting treatment for someone in a persistent vegetative state was affirmed). Tarantini’s attorney, Nicola Quaranta, commented that “this is a historic ruling, which affirms the secular character of the Italian state.”

The upcoming ruling by the Constitutional Court will only have an indirect effect on the situation of Berlusconi himself. The former prime minister is still under investigation in Bari (where a preliminary hearing judge will decide on whether he will be indicted after the elections) and in Milan, on charges of having paid Tarantini and the women to induce them to lie in court. The legal proceedings will go ahead regardless, as Berlusconi may have still obstructed justice, even if the Constitutional Court were to decide that being a middleman for the activity of sex workers is not a crime.

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