Religious adhesion and legal reaction in a democratic, pluralist and tolerant society


16 February 2018 – Video e text of the paper by Professor Germana Carobene, member of the Scientific Committee of FOB, at the International Convention Law and Freedom of Belief in Europe, an arduous journey, held in Florence on 18-19 January 2018.

ABSTRACT: A recent intervention by the Nuoro Criminal Court, in July 2017, allows us to think at the problems of the protection of individual freedom again and, in particular, at the affiliation of religious movements. In this case, it was discussed whether accession to a minority confession could be related to the abduction and mistreatment of a young woman. Despite having obtained enough media visibility, focused on the dangers of the movement, the judicial investigation, however, allowed to totally exclude this hypothesis, declaring that "the fact does not exist" and that the movement was totally extraneous to the facts.

Since the seventies of the last century, the attention of the public opinion, prompted by clamorous episodes of news, was addressed to the observation of new religious movements, with the development of theories on "brainwashing". In Italy the debate had a particular resonance, with the ruling of the Constitutional Court of 1981, which declared the unconstitutionality of plagiarism, excluding its punishment but not its existence, in the face of the impossibility of delineating a juridical figure from the outlines net and defined. On the other hand, it is well known that France and Belgium have recently introduced specific criminal norms to condemn the 'sectarian drifts' and, above all, to protect from the abus de faiblesse.

Faced with criminalization attitudes of the new religious movements, on the other hand, it would be more correct to frame the individual cases in the common law and to penalize only those that are criminally deviant. The value of secularism, in a democratic, tolerant and pluralistic society must, in fact, be based on a fundamental axiom: to believe in the capacity of man to act freely in full respect of his ethical values.

La The freedom of religious adhesion, with particular reference to the affiliation to new movements, offers an interesting perspective view to evaluate the effective guarantee of rights in democratic political systems. In fact, it is known that this freedom, connected to that of manifestation and diffusion of thought, represents the "cornerstone of the democratic order", the fundamental value of the c.d. pluralism in its dual sense of active and passive freedom, endowed with the special status of supreme principle, inscribed in the genome of democratic Constitutional Papers. The difficulties in managing these issues, by public authorities, are currently witnessed by a series of interventions, both governmental and parliamentary, that affect many European countries, motivated by the need to understand the phenomenon, the protection of vulnerable and easily influenced individuals, from the fear of external and deviant pressure on the exercise of individual free will and on the ability of self-determination of individuals by sectarian groups deemed dangerous and basically implosive.

A recent ruling by the Nuoro Criminal Court, in July 2017, makes it possible to think to these issues again since it was discussed whether membership of a minority Church could be related to the abduction and mistreatment of a young woman. Despite having obtained enough media visibility, centered on the dangers of the movement, the judicial investigation, however, allowed to totally exclude this hypothesis, declaring that "the fact does not exist" and that the supposed involvement of the Church was absolutely unfounded. The anomaly of the case de quo, which could be classified as seizure and mistreatment, was the continuous judicial reference to the religious adhesion of the presumed guilty as if it were imputable to this, and not to any misleading behavior, even non-religiously qualifiable, their criminal conduct.

At the moment these problems have been partly changed and amplified by the emergence of proselytism in some fringes of Islamic fanaticism which are indicative of jihad and which push for the fulfillment of terrorist acts. It is a question of new phenomena in the European juridical fabric given also the particularity of Islam which is not only a religious experience but involves the whole existence of the individual. These groups have been considered as real destructive sects and have led to a reconsideration of the limits to religious freedom, prompting some European countries to issue specific antiterrorist, dangerously authoritarian legislation.

This again allows us to reflect on the fear, produced in public opinion, of the danger of the c.d. "sectarian deviance". This phenomenon, as is known, is backdated to the seventies of the last century when the attention, prompted by clamorous episodes of news, was addressed to the observation of new religious movements and to the social and psychological implications, pre-juridical, consequent to the 'affiliate. This is not the place to underline the continuous confusion and, sometimes, the interchangeability of the terms new religious movements, cults, sects, where the negative connotation of the latter is usually evident, commonly associated with a behavior considered misleading, within certain cultural and legal categories. It is important, however, to point out that at present the use of the phrase "new religious movements" is preferred, which does not assume an immediate ideological color, but is set up in a neutral manner, more respectful of these new modes of community structuring.

The phenomenon now also affects European countries and requires the attention of the jurist interesting food for thought, with particular reference to the penalties, the manipulation - real or alleged - of conscience, up to the c.d. brainwashing. The basic analysis seems to have been influenced, for a long time, by an attitude of mistrust towards these movements, based on the defense of traditional religiosity and the closure towards new forms and methods of approach to the transcendent, emphasizing coercion, or even the suppression of individual liberties in these new forms of religious communities.

Brainwashing theories, better defined than coercive persuasion, have their remote origins in the difficulty of explaining choices that appear to society to be unclassifiable and not comprehensible. Faced with the impossibility of motivating certain behaviors, with the use of the categories of common feeling, it was preferred to maintain that such phenomena are to be associated with inductions external to the subject, forced to act not in full consciousness.

In recent years, this problem has affected many countries and international organizations, just think of the report on cults elaborated by the European Parliament in 19991. France was the first, since 2001, to perceive the need of a more complete criminal protection of the individual in comparison of the phenomenon of the cd fraudulent abuse of the state of ignorance or weakness - a concept preferred to the precise definition of "mental manipulation" - translating it into a specific law; ten years later, in 2011, a new criminal offense was introduced in Belgium, including a new criminal offense.

In Italy the debate on psychological coercion had a particular resonance following the ruling of the Constitutional Court of 1981, which declared the unconstitutionality of art. 603 c.p which incriminated as "plagio" the activity of those who "subject a person to his power in such a way as to reduce it to a total state of subjection". Many perplexities were raised about this legislative provision since the preliminary work, in which the fear emerged that the indeterminacy of the law could favor "excessive and dangerous interpretations".

The Court has emphasized that the debate focuses on the one hand on the intelligibility of the precept, and on the other on the investigation that the phenomenon hypothesized by the legislator is actually ascertainable by the interpreter on the basis of rationally acceptable criteria to the state of science and 'experience'. Article. 25 of the Constitution, a legal reference point in criminal matters, makes it possible to underline that as a result of this principle, the burden of the criminal law ... (is) determining the criminal offense with precise characteristics so that the interpreter 'concrete hypothesis to the rule of law, can express a judgment of correspondence supported by controllable foundations. In light of these considerations, the Court has compared the art. 603 to a mine loose in our system, being able to be applied to any fact that implies psychic dependence of a human being from another.

Therefore, the reintroduction of a form of offense to free conduct is particularly problematic, and it is undoubtedly dangerous at the normative level, to which is linked a result that is not specified, nor can be specified in terms of legal certainty. If, in fact, the paradigmatic example of free-form crimes is represented by the murder, the same is connected, however, with an event, absolutely certain, such as the death of an individual. In such hypotheses, however, concepts such as "conditioning of the personality", "state of subjection", do not represent events endowed with the axiom of certainty and make the identification of criminal conduct at least complex.

Influence and "psychic subjection" are "normal" realities in the relationships between human beings; this reminded the Court to highlight the indeterminacy of the law, thus concluding that the art. 603 should be repealed as it provided for "a hypothesis which can not be verified concretely in its execution and in its result as neither the activities that could concretely take place to reduce a person in a state of subjection, nor how objectively qualifiable would be objectively identifiable state, whose totality, legally declared, has never been judicially ascertained ... Nor is it provable, on the basis of current knowledge and experience, that there exist beings capable of obtaining the total enslavement of a person with only psychic means ". In essence, the Court excluded the punishment but not the existence of plagio, faced with the impossibility of outlining a legal figure with clear and defined contours.

The scientific problem revolves around the dialectical relationship between persuasion and suggestion. In psychoanalytic the former is defined as the exercise of an ascendant, from one subject to another, which does not appeal to the principle of authority. Therefore, persuasion is not a work of conviction that aims to induce another individual to act against his will, compressing it, or even nullifying it, through the use of violent techniques: threat, blackmail, guilt. It is configured as an action that does not damage other people's freedom, which tends to implement a change of opinion, only with a transfer of ideas.

More delicate and complex is the reference to the suggestion that tends to operate a total passage of ideas from one subject to another, deleting any possibilities of critical analysis, but above all it manifests itself as a tendency of the suggestion to realize the ideas received, assuming them as their own. The indecipherability of the contours of one and the other figure is evident, which, if they can be defined at a theoretical level, can not support the interpreter with legal certainty in the concrete evaluation of the phenomenon.

In the United States, the debate on these tools and on "brainwashing" was particularly heated during the period of the c.d. cold war, as an attempt to explain the adhesion to the communist doctrines, to move, at a later stage, to delineating also the techniques of persuasion for the affiliation to the religious sects, underlining the intrinsic dangers, at the social level, of the same. The most recent psychological and psychiatric orientations have, however, definitively overcome the model of brainwashing as a category with outlines that are not well defined or delineated. Psychoanalytic observation prefers to underline that the analysis of adherence to these organizations must be more focused on the personality of the subject. In fact, it is evident that more or less accepted and acceptable forms of persuasion can easily be exercised in many types of social structures, from those familiar to community ones.

The different explanations about these affiliations seem to develop on the passive-asset axis. The paradigm of passivity tends to see who adheres to the new religious movements as a victim of induction, of manipulation, of coercive persuasion, or of ignorance or even of collective psychosis, with a more or less emphasized psychiatrization of the problem; the opposite model of the activity, centralizes the attention on a subject, active, looking for answers to their needs that traditional religiosity are not able to satisfy, needs placed on the border between religious and transcendental and psychological expectations, of building itself and its own identity. Between these two opposing positions there is an archetype, definable intermediate, which takes into account the interactional field between the inductions from the outside and the internal positions of the individual ... referring to the construct of transitional phenomena ... able to provide a psychological evaluation along the line of the growth of the independence and of the person’s maturity, on the specific and individual modalities of conversion, adhesion and cohesion to religious groups.

If the behavior of the individual, following an alleged psychological conditioning, is structured in destructive or criminal actions, for himself or for others, with disastrous effects for the individual, we are in the psychological field of manipulation or plagio, in which we believe that the individual would never have performed those activities except as a result of a psychological pressure such as to change his actions, exercised by people with a strong charisma and capacity for suggestion. It is therefore necessary to have a clear distinction between persuasion and manipulation. In the first case the individual is free to listen or not, to accept or not the reasons of others, is essentially free to choose.

The limes between education and plagio is in free will that scientists consider structured in a biological component and in educational, cultural and social conditioning. It is also important to underline that religious experience is an extremely complex phenomenon that involves various thoughts, emotions, sensations and behaviors; there is not a single brain area involved in religious experience, but an entire system, influenced by a multitude of socio-cultural factors. It is therefore essential to also take into account the context in which it is carried out, integrating the analysis with data from other areas of investigation such as evolutionary psychology, anthropology or cognitive science to fully understand the complexity of this phenomenon, to link the possible legal category with.

The Italian bill on the crime of mental manipulation, lying at the Senate Judiciary Committee, seems to follow, albeit with some clarifications, the provision of the abrogated art. 630 c.p. In the report of the majority supervisor we read that this provision would expressly define the means and methods (violence, threats, chemical means, surgical interventions, psychological practices) that produce a clear and determined event: conditioning of the personality that translates into a state of subjection such as to exclude the ability to judge and the ability to escape from the impositions of others ... it must be an event that produces acts that are gravely prejudicial. If in the old art. 603 the event consisted in a "total state of subjection", in the current project the effect of the conduct consists in "placing someone in a state of continuous subjection such as to exclude or greatly limit the freedom of self-determination". The terminological change does not, however, correspond to a similar substantial change, such as to make it easy to identify the criminal offense. Despite these clarifications, in fact, doubts and perplexities have already been expressed in the parliamentary debate, anchored, first of all, to the doubts of unconstitutionality but also to broader philosophical evaluations, with reference to the categories of secularity and pluralism, in summary of the founding values of our legal system.

The reference, in fact, to "techniques of conditioning of personality or suggestion" is not sufficiently certain and delinable, as well as the consequences of the criminal action that should be translated into a state of continuous subjection such as to exclude or greatly limit the freedom of self-determination, do not appear very dissimilar to the abrogated predictions of plagio. Furthermore, a special aggravating circumstance is foreseen in the hypothesis in which the crime is committed within a group that promotes or practices activities aimed at creating or exploiting psychological or physical dependence. The real discrimination of unlawfulness is thus linked to the arbitrary interpretation of the owner of the investigations that will have to evaluate the goodness or otherwise of the hypothesized conditioning and of the eventually induced dependence. In fact, it is difficult to identify and punish the hypothesis of mental manipulation in the face of the indefinability of the legal asset to be protected and of the methods of attack against it.

It is undeniable the difficult task of the legislator in this very delicate area, in the search for a balance between the different needs, between those who suffer the suggestion of certain messages and the freedom of choice to adhere to certain ideologies. The identification of a new criminal offense should be built on a double level, which does not lead to the problem of the legitimacy or otherwise of a religious experience, but limits itself to the question of the compatibility of this with the values and principles constitutionally and criminally relevant. The risk of arbitrary interference in a very individual and very personal sphere of the individual is, however, so penetrating that it does not lead to support the possibility of the introduction of new types of crime. Faced with the criminalization of the phenomenon of the new religious movements as a whole, it would therefore be more correct - and more functional to a correct juridical interpretation - to frame the individual cases in the common law and penalize only the criminal acts deviating through the reference to art. 600 (reduction in slavery), art. 640 (fraud), art. 643 (circumvention of incapable persons).

A democratic State, which inserts laicità/secularism among the fundamental principles of its own juridical fabric, should guarantee its neutrality with respect to religious beliefs and favor all possible expressions of the fundamental right to religious freedom, which is one of the most important evaluation parameters of the level of freedoms protected by a civil community. In this light, any form of interference or distrust towards movements that move in the depths of religiosity should be avoided. Social alarmism, linked to the proliferation of "different" fideistic practices, could not and should not justify a power of interference by public authorities. The protection of the freedom of self-determination of the subject can not lead to a compression of the subjective rights of the same level and legal dignity (such as freedom of expression of thought, religious and political proselytism etc.), and must not lead to an imbalance in the majorities / minorities, favoring, or even creating, forms of discrimination against the latter.

Only the affirmation of a conception of man inexorably potential and therefore free and responsible, can allow a serious juridical reflection on religious freedom, understood as an expression of an emancipation of individuals with the only contextual limit of its juxtaposition to other freedoms, or better, to other codifications of individual freedom. In fact, the latter can not be regulated in the abstract sense; what is relevant is only a legal reflection on the management of its codes. To "cultophobia" 1 and to the creation of the sense of dangerousness of sectarian deviance, exercised through forms of communicative persuasion, it is necessary to give a firm juridical answer that clearly underlines the individual responsibility for the accomplishment of criminal conduct. Free will must be protected from any interference, constraint, but above all it is necessary to understand the meaning of the use of criminal law in the religious sphere.

In modern criminal legislations of Western democracies religion has always been considered an absolute value to be protected, placed at the foundation of the traditions that structure society; and it is now accepted that the claim of public relevance of religion is in itself in line with the principle of secularism. Finally, it is important to underline that the value of the same is based on a fundamental axiom - believing in the ability of man to act freely in full respect of ethical values - a trend goal of every pluralist society to which the inviolability of some human rights is added and the importance of cultural / religious pluralism. The declension of religious freedom must therefore include the value of the free formation of conscience and religious adhesion, while respecting the inner needs of individuals to find answers and to socially manifest their own inner convictions. If it is true that no religion can claim to violate the conscience and freedom of individuals, it is equally unquestionable that no one is allowed to limit this freedom, not even in the name of a true / alleged secular State.

Professor Germana Carobene