Criminal law and religious factor in multicultural societies. Interview with Prof. Fronzoni

Professor Vasco Franzoni

Prof. Vasco Fronzoni, is an extraordinary Professor of Muslim Law and Islamic Countries at Pegaso Telematic University, L'Orientale University in Naples and Ca' Foscari University in Venice.

We interview the professor on a topic that is currently arousing interest: "Criminal law and religious factor in multicultural societies. What Criticalities?"

Q: Prof. Fronzoni, some recent news (the media report that in Ferrara a Muslim parent of Moroccan origin has segregated his daughter because she wanted to live a "western life") put again emphasis on the cultural factor that influences behaviors that may be illegal. Can you help us better understand the relationship between criminal law and the religious factor?

A: Globalization, migration flows and the development of the web in its planetary dimension are certainly the factors that have generated a multicultural-denominational dimension of our societies. This relatively new phenomenon suffers from the lack of regulation or, sometimes, of shared rules on a criminal level, with reference to some lifestyles of religions and cultures different from the dominant or hosting one. This can cause critical issues due to legal uncertainty and discrimination.

In Western societies, a state organization and legal institutions based on secularism, prevail more or less across the board. Over the course of time, this organization has led to a loss of centrality of the religious factor on a community level, which has been debased from its role as a regulator of common ethics that it historically held, and progressively confined to the dimension of the internal forum. This trend has not been avoided by the Italian legal system, which, however, has preserved a "creeping denominationalism " that can unintentionally weigh down, if not aggravate, these critical points.

Indeed, in the new plural structure of Western societies, new juridical problems can emerge, essentially linked to the differences between lifestyles sometimes considered dutiful by "new citizens" and the community model of the hosting society. It is precisely under this specific lens that those behaviors induced by the context of origin and which have an external and potentially colliding influence on the legal system in which they are manifested, should be analyzed and judged. In fact, it can happen that as a matter of fact, differences in heritage and discordant habits, often assumed on the basis of suggested models rather because of personal choice or inclination  can the result, on an objective level, in criminally relevant conducts.

Here is where the reasoning on criminal law and religious factor has further developed, which must be enriched by an inclusive approach open to the understanding of those imposed mechanisms that guide the way of acting of subjects "suspended" between several cultures or models.

In the course of time, such conducts have been included in the category of culturally motivated offences, sometimes enrolling them in the category of exemptions, sometimes in that of exculpatory measures, alternately passing from the field of defences to that of offences.

Q: But in concrete terms, what are these motivations that condition human behavior and how does the legal system respond?

A: Probably, in order to simplify the reflection in a field that is not immediately understandable, the doctrine does not always highlight with due attention the genetic difference of these behaviors, when assumed on a cultural or denominational level. On the contrary, it should be clarified that cultural motivation, coming from below and in line with widespread behavioral models in the society of reference, would seem to allow the subject a greater margin of appreciation on behavioral choices, whereas a religious conviction, therefore coming from the top, would seem to limit the choices of subjects grown up in the shadow of those rules, typical of revealed juridical-religious systems.

An example of the concrete effects of this distinction can be provided by some cultural and religious practices on minors. In the case of female genital mutilation, a practice that is not imposed by religious affiliation but is caused by the cultural dimension of social conditioning, those who are responsible for a minor, at least on a theoretical level, could also choose not to comply, especially when they know they are violating a law. On the other hand, when it is the religious conviction that imposes certain rituals and consequent behavioral patterns, as in the case of ritual male circumcision, it is difficult to imagine that the believer can escape the divine will, even if he is aware that such conduct is illegitimate in the legal system in which he lives.

Therefore, deepening the analysis, this differentiation could tend to condemn conducts motivated by the cultural level and justify conducts inspired by the denominational dimension.

In any case, it should be noted that the novelty of the sphere and the absence of a precise theoretical paradigm of reference, along with the possible lack of knowledge on the part of legislators and courts of the perceived obligatory nature of the conduct of the agent due to religious and/or cultural conditioning, can lead to the restriction of the right to religious freedom and can also result in blatant discriminatory as well as antinomian pronouncements.

Q: Does this happen in Italy as well?

A: Yes. On the Italian horizon, this is the case of the above-mentioned ritual male circumcision, a matter not regulated at a normative level and where the main regulatory source remains therefore the jurisprudence. In fact, far from having to replace the legislative power, the judiciary authority rules on specific cases and not within a unitary framework, with the consequence of producing contrasting rulings depending on the involved judging body. In the last 20 years in Italy the jurisprudential decisions on circumcision practice motivated by a religious factor and not a therapeutic one, have been the most varied--:

– the lawfulness of the ritual intervention, provided that it is well performed even by a person not licensed in the health profession and even if practiced at home;

– stigmatization of the ritual intervention passed off as therapeutic with services charged to the national health service;

– lawfulness of the intervention performed by a non-licensed health professional, even if at home, as long as practiced with special precautions from a health point of view;

– medical act, executable only by personnel qualified for the health profession;

– unlawfulness of the intervention practiced in a physician's office by someone who is licensed as a health professional but not specialized in surgery;

– non-therapeutic circumcision always producing an injurious disease of the body;

– applicability of the consent of the entitled person;

– scriminable intervention if performed in the choice of religious education of the children;

– procedural valorization of the religious motivation;

– reprimand for falsification of medical records aimed at framing the non-therapeutic act as therapeutic;

– lawfulness of the act performed by a person not qualified for the health profession if it is covered by an agreement.

This last point is developed in the judgment of the Court of Cassation n. 43646/2011, which crystallizes the right of residents or citizens to ritual circumcision if covered by the agreement under art. 8 of the Constitution and albeit the intervention is performed by a non-practitioner. This means that, in a discriminatory way, the intervention performed by citizens or residents belonging to a denomination without an agreement will not be legitimized. In this pronouncement I hope to imagine a warning given by the Supreme Court to the legislator to wake up from an inexcusable absence.

It must also be said that in other circumstances the jurisprudence has been more sensitive to the religious requirement, even in an international dimension, as in the case of the recognition of the kafala institution under Islamic law, i.e. the fostering of a minor in a difficult situation who, however, unlike in the case of adoption, does not legally enter the new family, but remains rooted in the biological one. In fact, since 2008, the Court of Cassation, in the name of the best interest of the child and of his or her religious rights, has overcome the incompatibility between the adoptive system of abandoned or unaccompanied minors prevailing in the West and the prohibition of adoption under Islamic law, reaching a "creative" solution by which it has, on several occasions, recognized the foreign sentences of foster care (kafala) as having the same value as the adoptive system, thus allowing children in kafala to rejoin their families back in Italy.

To get back to the chronicle, it is only a few days ago the news (6/12/2021) of a Muslim parent of Moroccan origin that in Ferrara was denounced by his daughter, who is of age, for mistreatment, threats and kidnapping in conjunction, as he opposed to the "too Western lifestyle " led by his daughter. Beyond the values inculcated in the education of the minor children, it will be difficult to justify by a religious heritage the behavior of a parent who imposes with threats and violence to an adult child the lifestyle to assume, since Islam does not legitimize nor allows such behaviors.

On the contrary, it is always recent (19/11/2021 - 30/11/2021) the news of the request for dismissal of a public prosecutor of the Prosecutor Office of Perugia with respect to a complaint for mistreatment in the family filed by a wife of Muslim faith against her husband. The measure, as we read in the newspapers, originally motivated among other things by the fact that "The conduct of forcing her to keep the full veil, while not acceptable in a Western perspective, is part of the cultural framework of those concerned (...): the relationship is characterized by strong religious-cultural influences to which the woman does not seem to have the strength or the will to escape" was then considered worthy of further investigation by the Chief Prosecutor. In the latter case, and at first, the discriminating factor of cultural motivation seems to be shared by the investigating magistracy, even though it is operating to the detriment of a woman who complains of harassment.

Therefore, in Italy the relationship between the religious factor and criminal law certainly shows a concrete and tangible interest, regulated, however, essentially by jurisprudence, and the consequent alternation of pronouncements should induce the legislator to emerge from inertia and regulate such a sensitive and, in some ways, strategic field.