Italian Supreme Court of Cassation, Criminal Section III, No. 34909/2007, 26 June 2007

Recourse against conviction for the crime of sexual assault, victim was the wife of the defendant. Different foreign law, territoriality of criminal law and ignorance of criminal law. Cultural factors that influenced the commission of the illicit conducts, malice and lesser gravity.

Art. 3 Italian criminal code
Art. 5 Italian criminal code
Art. 609-bis Italian criminal code

1. If the marriage between two people is civilly regulated by Moroccan law and the crime of sexual violence has been committed against a spouse, it is totally irrelevant that Moroccan law itself does not provide for intra-marital sexual violence as a crime, since, with regard to such conduct, when it has taken place on the Italian territory only Italian criminal law (which recognises also sexual violence committed against a spouse as a crime) must be applied. Indeed, according to the general principle of the compulsoriness and territoriality of criminal law, laid down in article 3 of the Italian criminal code, criminal laws are binding on all those who, whether citizens or foreigners, are in the territory of the Italian State, with the exceptions established by domestic public law or by international law.

2. The general principle that ignorance of criminal law is inexcusable, enshrined in article 5 of the Italian criminal code, also applies to a foreign national who cites as a justification for an offence the mere difference between Italian criminal law and that of his/her country of origin, since a person who has not fulfilled the duty of information on the laws in vigor in the legal system of the Country in which is present, in accordance with the criterion of ordinary diligence, does not find him/herself in a situation of unavoidable, and therefore blameless, ignorance.

3. It is not sufficient to invoke cultural differences or possible different customs of one’s country of origin to demonstrate the lack of general malice or the absolute inevitability of the ignorance of Italian criminal law on sexual offences, but such circumstances may be taken into account in order to consider the hypothesis of lesser seriousness, referred to in article 609-bis, par. 3 of the Italian criminal code, to be present.

(Case concerning two spouses of Moroccan origin. The woman had been forced into marriage by her family and, during the first period of cohabitation, had been subjected on several occasions to sexual intercourse against her will, before abandoning her husband. The defendant’s defence had argued that Moroccan law did not provide for the crime of sexual violence between spouses and therefore, on the one hand, Italian criminal law could not be applied to a marriage governed by Moroccan civil law and, on the other hand, there was a case of ignorance of Italian criminal law.)