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Homophobia, only generic aggravating

Homophobia, a vacatio legis which can only be filled with the general aggravating factor pursuant to art. 61 of the criminal code.

The case published on the Corriere della Sera - «Me, gay assaulted. But homophobia is not aggravating the trial " January 28, 2020.

“I am happy because a page has closed, but the bitterness remains, because in Italy there is no law that provided for the aggravation of homophobia. And I was attacked because I'm gay.

My homosexuality is the key to everything that has happened, but in Italy it is not so: until the dead man runs away, we don't understand gravity. A few days ago, in Rome, another boy was beaten because he was gay "these are the words of Domenico Centanni, 38, after reading the sentence that sentenced Adnet Hamaroui, 35, to 8 months in prison.

Domenico Centanni, until four years ago lived in Cremona, worked in the Esselunga and to round off he was the fitness and aerobics instructor in the Prima Classe gym in Corso Mazzini.

On March 1, 2016 he was the victim of a brutal beating, he was giving lessons to a group of girls when Hamaroui, a client of the same gym, dragged him to the street and with unprecedented violence attacked him "Ugly shitty fennel, in our country you don't know what people like you are doing".

All too often the media echo focuses on aggressions, injustices or inequalities with homophobic attitudes.

The topic of discrimination perpetrated against LGTB people (lesbian, gay, transgender and bisexual) it is certainly an indicator of quality of the level of civilization and cultural "modernity" of a society that is to be defined constitutionally oriented or devoted to the equality of its people.

It goes without saying that discriminations based on the subject's sexual orientation open inevitable questions also on generic issues such as secularism of the state and on the always delicate relationship between criminal law and ethics.

In fact, for some time now, questions have been raised about the appropriateness and reasonableness of the use of the criminal instrument in contrasting these behaviors: the use of the penal sanction system for the protection of the victims of these behaviors often determines a conflict, difficult to contemplate, between goods fundamental juridical principles of constitutional origin such as the free manifestation of thought, the principle of determinateness and the principle of offensiveness.

Of course, such actions are in themselves extremely serious: these are "special crimes" because the agent translates into a fact that is already reprehensible in itself, a homophobic emotional thrust already widespread in "civil" society and sometimes, unfortunately, even "institutionalized" " (Winkler, Strazio, The abominable law. Gay and lesbian, judges and legislators, Milan, 2011 pp. 109-110.)

Very often we have a way of ascertaining how hatred towards certain categories of people is not a phenomenon in itself, referable to specific individuals, but the expression of a worrying socio-cultural, ideological, broader and more widespread approach towards some social realities, such as the homosexual one.

Coming then to the concept of discrimination, it indicates a difference in treatment with respect to the fundamental principles of equality, perpetrated towards certain subjects who see their possibilities of social, cultural, economic and political participation compromised due to certain personal characteristics such as age, gender identity, belonging to an ethnic group, religious belief, sexual orientation.

Each form of discrimination finds its matrix in a social attitude based on cultural models, stereotypes and prejudices that affect the lives of so-called minorities.

Such attitudes can be distinguished in direct or indirect discrimination.

Direct discrimination occurs where, on the basis of certain characteristics and without any plausible justification, a person is treated less favorably than another person is, would have been or would be treated in the same situation.

Indirect discrimination takes the form, however, when certain apparently neutral rules or practices can put people in a particular "group" in a particularly disadvantageous position.

For example, according to Taurino, homophobic discrimination can develop on a personal level through negative or stereotypical prejudices and opinions towards homosexuality; at an interpersonal level they imply the translation of prejudices and personal opinions into heterodirect behavior; at a social level, through the acceptance, reiteration or diffusion of social communications based on the continuous repetition in stereotypes of LGTB people; and finally at an institutional level through discriminations manifested more or less openly in institutions such as the family, the school, the Church or the state ( Lo Giudice, homophobia and transphobia, in DisOrientamenti, by D'Ippoliti, Schuster, Rome, 2011)

It (homophobia), inexorably, arises from the personal belief that identifies the other as different, opposed, inferior or anomalous compared to a supposed social order. Homophobia, in this sense, like racism or xenophobia, determines real forms of social exclusion.

This element, added to a behavior that is already in itself contrary to the law, makes it possible to speak of "Hate crimes".

The term hate crimes is officially used for the first time by the OSCE in 2003 to indicate crimes based on prejudice, discrimination and hatred generated by factors such as race, ethnic origin, sexual orientation, religion, social status, political affiliation. With hate speeches instead, speeches or manifestations of thought characterized by hatred, aimed at discrediting a person or a group of people on the basis of some characteristics, as well as instigating hatred towards them, are indicated.

From a formal point of view, basically, all aggressive, violent or injurious conduct protected by the interests and legal assets, integrate crimes already foreseen by the penal code and correspond to classic cases such as beatings, personal injury, injury, defamation, sexual violence, private violence, threat, persecutory acts, damage, murder, house violence, extortion etc.

Naturally, the reflection on the opportunity to criminalize homophobia is confronted with the inevitable need to prevent undue and illegitimate compressions of the constitutional principle of the freedom to express one's thoughts pursuant to art. 21 Const.

The fact is that, in anticipation of the "hate speeches", the legislator proposes to anticipate the criminally relevant area: this criminal policy decision is justified by the fact that these speeches are closely connected and prodromal to the real "crimes of 'hate' and often prove suitable for determining or reinforcing prejudices and stereotypes linked to social categorisations. (Pugiotto, Are words stones? Hate speeches and freedom of expression in constitutional law, cit. P. 4)

The fact is that this standardization, although for some time felt by civil society as necessary, finds a fundamental limit in the fear of re-proposing and re-evaluating the paradigm of opinion crimes.

However, if we want to shift our focus slightly, we can find that almost all European States provide for legislative instruments of a criminal nature aimed at combating homophobia.

The same Treaty of the European Union, in art. 2, focuses on the problem of gender discrimination when defining respect for human dignity, equality and the protection of human rights, as fundamental values ​​that govern the Union.

Furthermore, the Charter of Fundamental Rights of the European Union, in art. 21 establishes, this time in a clear and direct way, a real prohibition of any discrimination based on sexual tendencies.

The Treaty on the Functioning of the European Union also states in Article 10 that "In defining and implementing its policies and actions, the Union aims to combat discrimination based on sex, race or ethnic origin, religion or personal beliefs, dignity, age or orientation sexual".

To date, however, despite the countless solicitations from Strasbourg, the States that penalize incitement to hatred, violence, and discrimination for sexual reasons are only: Austria, Belgium, Cyprus, Croatia, Denmark, Estonia, Greece, Malta , Spain, France, Ireland, Lithuania, Holland, Portugal, Romania, Sweden.

Italy therefore remains among the states not to explicitly sanction sexual discrimination.

The only normative reference, naturally vague and homological, is the issue of Law No. 654 of 1975, ratification of the International Convention on the elimination of all forms of racial discrimination in New York on March 7, 1966.

In its original formulation, art. 3 paragraph 1, of the aforementioned, sanctioned by imprisonment from one year to four who had disseminated in any way ideas based on superiority or racial hatred and who had incited in any way to discrimination, who had incited to commit or had committed acts of violence or of provocation to violence, towards people only because they belong to another racial group.

Subsequently first in 1993 with law 205, said Mancino law, which extended the applicability of this law also to religious discrimination and then in 2006 with the introduction of relevant changes to the penal code in the field of opinion crimes, efforts were made to raise the rate of democracy of the Italian legal system.

Despite the few attempts made, it is clear that discrimination, based solely on a sexual stigma, does not fall among those expressly considered by law No. 654 of 1975 or by subsequent amendments.

It is absurd to note, on a topic so deeply felt and present in public opinion, such as the bill 1052, also called the Scalfarotto bill, of 2013 still hangs in the Chamber.

Indeed, unlike what happens similarly in other European States (with much more detailed and precise regulations), in Italy this "sanctioning vacuum" can only be filled by referring to the provisions of art. 61 of the Italian Criminal Code which considers, as a common aggravating circumstance with common effect, having acted for abject or futile reasons (this expression refers to those psychic impulses that induce the subject to carry out a certain conduct and which are characterized by being despicable, wicked ( abbietti) or completely disproportionate to the crime committed).

The reason, therefore, represents the "stimulus, the motivation" that pushed the subject to determine himself in a given conduct, and not properly the purpose, which instead identifies the finalistic objective of the action.

In conclusion, while waiting for the Italian Legislator to finally take a position on such a delicate issue, all that remains is to refer to this aggravating circumstance if one is faced with offenses such as injuries, threats, defamations, private violence that are the the result of discrimination originating solely from the victim's sexual orientation.

It is preferable to file a criminal complaint as soon as possible through a trusted lawyer with expertise in family law and criminal law; this for the best defense of one's rights.

The Cecatiello Law Firm advises its clients for the best management of criminal proceedings.

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