Responsabilità civile e prevenzione dell'abuso interpersonale, fra molestie sessuali e bullismo

This research aims at analyzing the preventive function of Civil Liability, canvassing the potential of the rule of vicarious liability, alias “padroni e committenti” ex art. 2049 of the Codice Civile, when applied to interpersonal abuse occuring in certain social contexts, characterized by the presence of a person in a position of authority who can be held responsible for illegal conduct undertaken by a person who works for his interest. The following phenomena are taken into consideration: sexual harassment, bullying and cyberbullying. All are phenomena that we can find in social contexts where the personality of an individual develops: school, work place, University, sport, ecclesiastical institutions, new realities opened by the sharing economy. As will be discussed, these phenomena reflect implicit social conceptions based on supremacy of the stronger towards the weaker, as they take place where an unequal relationship, related to the physical, sexual and social aspects, exists. With regard to the structure of this research, in the second chapter the definition of sexual harassment is canvassed, as any unwanted conduct related to the sex of a person, in a physical, verbal or non-verbal way, with the aim or the effect of violating the dignity of an individual and to create a hostile and degrading environment. The third chapter focuses on the definition of bullying, as an aggressive and intentional act realized by a “bully” towards an indefensible individual, alias the “victim”, also via new forms of technology. Finally, the final chapter speculates on the strict liability which arises from the art. 2049 of the Codice Civile on the subject in a position of authority, through an evolutionary understanding of the article, as a rule which is able to adapt itself to technological progress and the evolution of social context. For instance, the responsibility of a public or private employer, a University, a Dioceses or a sport society in cases of sexual abuse perpetrated by employees. In cases of bullying, on one hand the responsibility is on the scholastic administration or on the organization which controls a private institution, as the result of the violation of a duty to control ex art. 2048, 2 c.c., imposed on the teachers or as the result of a lack of anti- bullying measures. On the other hand, the strict liability can also be assigned to the parents of the “bully” ex art. 2048,1 c.c., as they have a duty to control the behavior of the child. By applying the “theory of risk”, these interpersonal abuses are considered as risk connatural to our period, and, for this reason, individuals on an apical position can be held responsible when the abuse takes place, as they can absorb these costs through the insurance system. In the case of sexual harassment and bullying there are commonalities namely preventative and precautionary measures, such as codes of conduct, nominated trusted individuals both internal and external to the organisation, efficient procedures, training and information obligations, that allow, through the threat of disciplinary action, to maintain a healthy environment.