Italian Supreme Court of Cassation, Criminal Section III, No. 37364/2015, 5 June 2015

Recourse against conviction for crimes of domestic violence, rape, serious personal injuries. Victim was the wife of the defendant. Cultural factors that influenced the commission of the crimes and putative consent.

Art. 2 Italian Constitution
Art. 3 Italian Constitution
Art. 50 Italian criminal code
Art. 609-bis Italian criminal code

The putative exemption of the consent of the entitled person is not applicable to the crime of sexual violence, since the lack of consent is an explicit requirement of the crime-type and the error on dissent represents an inexcusable error on the criminal norm. Therefore, justifications which, in the name of alleged cultural differences, lead to the subversion of the principle of compulsoriness of criminal law enshrined in article 3 of the Italian criminal code, have no right to citizenship. This is all the more so if, in such a way, it is allowed to weaken the protection of the fundamental principles of the legal system and of the inviolable rights of the person, which the Italian Republic has undertaken to recognise not only internally but also in relation to the countries that have signed international conventions and treaties.

(In the case in question, the defendant's defence alleged that his archaic cultural background led him to presume the existence of consent to intra-marital sexual intercourse, or anyway not to perceive the woman’s discomfort.)