Italian Supreme Court of Cassation, Criminal Section VI, No. 46300/2008, 26 November 2008

Recourse against conviction for crimes of domestic violence, kidnapping, sexual assault, breach of family care obligations. Victims were the wife and minor son of the defendant. Cultural and religious difference that influenced the illicit conducts. Defendant's subjective element.

Art. 2 Italian Constitution
Art. 3 Italian Constitution
Art. 5 Italian criminal code
Art. 572 Italian criminal code
Art. 609-bis Italian criminal code

1. The defence’s assumption that the subjective element of the crime of domestic violence is excluded by the different concept that a defendant of Muslim religion has of family cohabitation and of the powers, including marital ones, due to him as head of the family, cannot be accepted, since such an assumption is in absolute contrast with the cardinal rules that inform and underlie the Italian legal system and the concrete regulation of interpersonal relations.

2. The constitutional principles laid down in articles 2 and 3 of the Italian Constitution, pertaining to the guarantee of the inviolable rights of man (to which physical integrity and sexual freedom undoubtedly belong), both as an individual and in social groups (which certainly include the family) and relating to equal social dignity and equality without distinction as to sex, constitute an insurmountable barrier against the introduction, in law and in fact, into civil society, of customs, practices, traditions that propose themselves as “anti-historical” in the face of the results obtained, over the centuries, to achieve the affirmation of the inviolable rights of the person, be it citizen or foreigner.

3. The subjective element of malice in the alleged misconducts is present, given the defendant's obligation to be aware, pursuant to article 5 of the Italian criminal code, of the prohibition imposed by the law on the damaging behaviors he has engaged in, whatever may have been, for him, the assessment of the conduct he has wanted and realised, and even if it was deemed harmless, or socially useful and not reprehensible. At most, this profile can be appreciated in the multifaceted framework of the variables indicated by article 133 of the Italian criminal code, in terms of personalisation and adequacy of the penalty.

(In the case in question, the defence alleged the failure to take into account the cultural and religious motivations that influenced the commission, by a defendant of Muslim faith, of crimes of domestic violence, intra-marital sexual assault and breach of family care obligations, excluding its malice.)