The jurisprudential outcome of the Italian Supreme Court of Cassation, Criminal Section III, No. 37929 of October 16, 2024, clearly defines the legal meaning of so-called “culturally motivated offences” within the Italian penal system. These offenses encompass behaviors that, while criminalized under the legal system of the majority cultural group, are accepted—or at least viewed less severely—within the offender's cultural background. Among the most emblematic examples are differing views on personal injury and domestic abuse, various forms of parental discipline under the ius corrigendi (including physical correction), and the practice of female genital mutilation, which is culturally rooted in some African regions.

The rise in migration has brought these issues to the forefront of Italian judicial scrutiny, requiring a delicate balance between the principle of territoriality in Italian criminal law—as set forth in Article 6 of the Penal Code, which punishes anyone present on Italian territory regardless of nationality—and the evaluation of the subjective element of intent (dolo), understood as personal blameworthiness in criminal acts.

In the case under review by the Third Criminal Section of the Court of Cassation, the defense claimed that the acts of abuse and violence were committed without full awareness or intent, arguing that the unequal treatment of men and women was a cultural norm long accepted by the victim. On this basis, the defense contended that the specific intent required by the incriminating provision—namely, the intent to inflict physical harm and perpetrate violence—was absent. The Court rejected this argument, affirming that for the crimes outlined in Articles 572 and 609-bis of the Penal Code (domestic abuse against family members or cohabitants, and sexual violence), general intent (dolo generico) is sufficient. It is not necessary for the perpetrator to act with any purpose beyond the essential elements of the offense; it is enough that the individual is aware of and wills the conduct in question. The Court excluded the applicability of any justification based on the exercise of an alleged right or mistake of fact, holding that such defenses cannot absolve conduct that is “blatantly invasive of the sphere of sexual intimacy or the moral or physical integrity of the person.” Referring to a previous ruling (Cass., Section III, July 2, 2007, No. 25112), the Court acknowledged the relevance of social, familial, or cultural contexts in cases where the act lacks erotic significance—such as a kiss on the mouth as a form of greeting in Russian tradition—but also clarified that criminal liability remains when such conduct reflects a conception of marital relationships that contravenes the principle of equal dignity between spouses, an inviolable principle under Italian law.

 

Finally, the judgment notes that the sanctioning framework for gender-based and domestic violence has been strengthened by recent legislative measures, which recognize these offenses as particularly serious from a social perspective. Specifically, Law No. 69 of July 19, 2019 (the so-called Codice Rosso) introduced new criminal offenses, such as the unlawful dissemination of sexually explicit images or videos (revenge porn, ex art. 612-ter of the Penal Code) and the disfigurement of a person’s appearance through permanent facial injuries (art. 583-quinquies of the Penal Code). More recently, Legislative Decree No. 150 of October 10, 2022 (Cartabia Reform) introduced procedural changes, including the requirement of a complaint by the victim for prosecution, and an extension of the time limit for filing such a complaint from three to six months, after which it becomes irrevocable.

In conclusion, the ruling reaffirms a well-established orientation in the jurisprudence of the highest courts: the Italian criminal system does not permit cultural exceptions for conduct that infringes upon fundamental rights, thereby underscoring the centrality of the principles of equality and the protection of human dignity.

 

(Comment by Bruno Pitingolo)