Extended protection

Francesco Martin
Current events

In other words, is it justifiable, in the presence of a legal gap and of the binding nature of law stated in the Constitution – which imposes the judge to apply the law as a rule in force – that a single judge could carry out such an extensive interpretation almost as they were to replace the legislator?

Our system, as even the least accustomed to legal issues reader know, includes certain circumstances called ‘extenuating’ and ‘aggravating’, which are sort of accessories of the initial crime, that might cause an extension or a reduction of the sentence.

In this context, we find article 604-ter of the Criminal Law, introduced by decree n. 21, on March 1st, 2018, that regulates the aggravating circumstance of a committed felony «for the purpose of discrimination or of ethnic, national, racial or religious hatred, or of facilitating the activity of organizations, associations, movements or groups that have, among their objectives these same purposes».

This article gained wide media coverage because of the attempt to apply, along with the Decree of Law Zan, a legislative extension that also covered the cases of gender discrimination. To this day, since that decree was never approved, all the groups not explicitly mentioned in the law are left out, starting with the Lgbtqia+ community.

Therefore, in these cases, according to a merely literal interpretation of the law, this aggravation could not be applied to a felony committed with the purpose of discrimination of sexual orientation, because the specific case is not in the peremptory list contemplated in the art. 604-ter of Criminal Justice.

Nevertheless, in a recent sentence, the Court of Milan [1] has applied the aggravating circumstance from art. 604-ter on the conduct of homophobia-driven lesions (Milano Courthouse, October 20th, 2022, dep. On December 16th, 2022).  The object of the issue was the violence perpetrated by a parenting couple of Islamic religion towards their son, as a consequence of his coming out; with the aggravation of art. 604-ter, the lesions were charged on the father, while the mother was sentenced for failing to prevent the violent act, and omitting assistance after.

In the reconstruction of events conducted by the judge, it appears that the victim, a fifteen-year-old boy, decided to reveal his sexual orientation to his parents hoping to receive their compassion and support.

The kid shared a WhatsApp video with the parents, showing a homosexual boy of Arab origins, and inserted his own comment revealing his sexuality. Once back home he found the mother who, at first, accused him of wanting to attract attention to himself, she then reprimanded him saying that – as a Muslim – he could not act that way because the Quran forbids love relationships among people of the same sex.

Once home, the father immediately went into his son’s bedroom exclaiming «Where is our beautiful faggot?» and, noticing that the son would not answer the question, he slapped him.  The boy, who was sitting on a chair, fell on the floor and, before he could pick himself up, the father struck him with several kicks, and threatened him («You wish to marry a man, so pull your pants down, I’ll rape you!»). At that point, the mother came peeking from the room’s entrance, but her husband intimated her to leave while beating the kid who was curled up on the floor.

After such a reconstruction of facts, the judge considered the case, as contested by the Public Prosecutor, consistent with the aggravation contemplated in the art. 604-ter

Indeed, for the judge: «(…) it is extremely clear that the aggression perpetrated by the father towards the son had a discriminatory connotation connected to sexual orientation. The insults, in Arab language, of a clear homophobic nature, and the threat to perform un-consensual anal intercourse on the son express, with no need of adding more, all the despise felt by the parent towards the adolescent’s sexual choice; displaying bestiality, which is not justifiable in any way, not even by recalling alleged religious beliefs. The intolerance towards the homosexuality of the son, expressed by the father’s conduct, becomes clear considering that the aggression happened a few hours after the sending of the message in which he confessed being gay».

The subsistence of the aggravating circumstance is built on the aggression perpetrated by the father, clearly inspired by sentiments of hatred towards the independence manifested by the younger son, following his declarations on his sexuality.

According to the Court, not only does the motivation of the aggression appear clear, but the methods of implementation revealed an ideological connotation as well. Consequently, the criminal liability of both defendants was found to have been established and they were both found guilty and convicted.

What the Court of Milan did, in this judgment, was an extension of the law[2]. Indeed, the Courthouse highlighted how the misbehavior was motivated by homophobia. It seemed to hold declinations of hatred listed in the provision (ethnical, national, racial, or religious) were only intended as an exemplification of what, under this light, would have become an aggravation for felonies with an ideological connotation.

However, the lack of motivation on this point, makes it difficult to comprehend the thought process that conducted the judge to apply the aggravation and, therefore, it is difficult to assume that this decision could represent a valid case law for its future application, even in absence of a legislative change[3] .

So, substantially, what was achieved with this sentence is the application of a norm, an aggravating circumstance, to a case not explicitly disciplined by law, through a case law extension.

Finally, after the facts and the regulatory framework were described, I would like to encourage readers to consider the following: is it right to apply aggravating circumstances – therefore increase the punishment – or, in any case, to apply a law to a case not explicitly considered in the law itself, despite the fact that it is clear that the motivation under the actions of the defendants is obviously driven by discrimination concerning sexual orientation?

In other words, is it justifiable, in the presence of a legal gap and of the binding nature of law stated in the Constitution – which imposes the judge to apply the law as a rule in force – that a single judge could carry out such an extensive interpretation almost as they were to replace the legislator?

And, before answering, consider that this mechanism could also work backwards, meaning not granting protection, but limiting it. to a case not explicitly disciplined by law, through a case law extension.

[1]  The judgment can be found through the following link

[2] This extension had also taken place with the order of the Court of Trieste on 2nd December 2011

[3]  P. Caroli, Tribunale di Milano applica l’aggravante di discriminazione razziale all’omofobia, in Sist. Pen., 16.01.2023.

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