Italian law requires rape victims to make a formal request that the state prosecute the alleged rapist. This request is called a querela and without such a request prosecution does not proceed, though there are some exceptions. In addition, the request for prosecution is irrevocable; the victim cannot withdraw her request for prosecution. Italian law has included the querela requirement for over one hundred years. It was included in the Zanardelli Code of 1889,3 the first Penal Code of unified Italy, maintained in the Rocco Code of 1930, the Penal Code of Fascist Italy, and-after a great deal of controversy-the querela survived the 1996 reform of Italy's rape law. Rape is the only violent crime for which a querela is required under Italian law. The drafters of the 1996 reform law justified maintaining the querela requirement for rape to ensure that a victim of rape is able to control the decision of whether to subject herself to a public trial. This Essay describes the history of the querela in Italy and explores the controversy surrounding the decision to maintain this institution. In addition, this Essay questions the degree to which the querela can protect victim agency when the attitudes of judges and lawyers in the Italian criminal justice system reflect persistent rape myths.
13 Mich. J. Gender & Law 273 (2007)