Continued Offence in Sexual Assault Cases Where Dates Cannot Be Specified

In prosecutions for sexual assaults that occur repeatedly over time, a technically significant procedural issue arises with some frequency: the difficulty — often insurmountable — of establishing a precise date for each incident. This chronological uncertainty is frequently invoked as an obstacle to applying the continued offence under Article 74 of the Criminal Code. The Supreme Court, in the ruling issued in connection with appeal 8303/2023, has set out the applicable standard and settled the debate about what the continued offence actually requires in this area.

The chronological difficulty in prolonged sexual offences

Sexual offences committed repeatedly within a context of cohabitation or a relationship of trust share a structural characteristic: the victim is frequently unable to specify the exact date of each episode. That inability does not reflect a deficiency in the credibility of the testimony or in the strength of the account, but the psychological normality of someone who has lived through a repeated and prolonged situation. Nevertheless, defence teams have used that procedural fact to challenge the viability of the continued offence, arguing that temporal indeterminacy prevents the plurality of acts from being considered proven.

The Second Chamber of the Supreme Court has expressly rejected that interpretation. The absence of exact dates is not equivalent to indeterminacy of the facts: what the evidential account must contain are distinct descriptions of the individual episodes, with sufficient elements to identify their individual nature and the temporal sequence connecting them.

Requirements of the continued offence: what Art. 74 of the Criminal Code demands

Article 74 of the Criminal Code governs the continued offence, which presupposes a plurality of acts or omissions that harm the same legally protected interest, carried out pursuant to a preconceived plan or by exploiting an identical opportunity. For the figure to apply, in essence, there must be distinct acts connected by that thread of unity of intent or identity of opportunity.

The ruling under analysis clarifies that, when those requirements are transposed to the field of offences against sexual freedom, the account of the proven facts does not need to fix a precise date for each episode. What is essential is that the declared proven facts meet three conditions: clarity in the description of what occurred; sufficient differentiation between the individual episodes, so that they are not dissolved into a generic narrative; and a temporal sequence from which it can be concluded that the acts are distinct and repeated, even if it is not possible to assign a specific day to each.

The rule of attraction by the most serious act

Within the continued offence, the coexistence of conduct of varying gravity — less serious acts alongside episodes involving penetration — raises the question of which criminal type applies to the whole. The Supreme Court applies what is known as the rule of attraction by the most serious act: the gravest act, penetration, acts as an integrating element that draws the remaining conduct into its own subtype.

The practical consequence is that the whole criminal sequence is classified and punished according to the aggravated type that corresponds to the most serious act, without the less serious acts generating separate or accumulated criminal liability outside the continued offence. This solution responds to the internal logic of Art. 74 of the Criminal Code — which punishes the totality as a single aggravated offence — and avoids a double punitive assessment of the same episodes.

The evidentiary standard required of the account of proven facts

The doctrine established by this ruling has a direct translation in terms of evidentiary requirements. The account of the proven facts cannot be limited to asserting, in general terms, that the defendant acted "repeatedly" or "on various occasions." That all-encompassing narrative does not satisfy the standard of the continued offence because it prevents the distinct episodes that constitute it from being identified.

Conversely, the account does not need to describe each episode with notarial precision or assign it a certain date. What it must contain are individualised descriptions of the different acts, with the elements necessary to distinguish them from one another — even by reference to circumstances of place, context or approximate sequence — and a narrative from which it can be concluded that there is a plurality of distinct repeated acts and not a single episode described in vague terms.

Implications of this ruling for the defence

The judgment precisely delimits the field of debate that can be useful for the defence in this type of case. First, it closes the argument that mere uncertainty about dates justifies acquittal or excludes the continued offence: that argument, by itself, does not succeed under the Chamber's settled doctrine.

What the ruling does open up is a rigorous analysis of the account of the proven facts: if the description of the episodes lacks the required differentiation, or is limited to a generic assertion of repetition, that descriptive deficiency can found a ground of challenge. The examination of the degree of specificity in the account — whether it sufficiently individualises each episode or dissolves them into an undifferentiated narrative — is therefore a central technical axis.

In addition, the rule of attraction by the most serious act can also operate in the defendant's favour where the proven facts describe episodes of very different gravity: the correct application of Art. 74 of the Criminal Code may rule out an accumulation of types that would be more severe than the correctly established continued offence.

Technical conclusion

The ruling issued by the Supreme Court in appeal 8303/2023 provides a criterion of legal certainty in a procedurally sensitive area. The continued offence under Art. 74 of the Criminal Code is compatible with the absence of exact dates in the account of the proven facts, provided that account describes distinct episodes with clarity and a sufficient temporal sequence. Penetration, as the most serious act, absorbs the remaining conduct within the structure of the continued type. And the analysis of the descriptive sufficiency of the evidential account remains the central technical axis in challenging these convictions.