Claim of aggravating circumstance for homophobia and transphobia offences Philosophy of Law -2016

Draft bill proposes to criminalize acts based on “homophobia and transphobia” as an aggravating statutory factor Arises socio-legal issues

in order to introduce aggravating circumstance for homophobic and transphobic offences the draft bill uses the legal tool of the so-called “Mancino Law” (n.205/1993) laying Urgent measures relating to racial, ethnic and religious discriminations, that is the Italian law that condemns gestures, actions and Nazi-fascist ideology directed to the incitement of violence and discrimination for racial, ethnic or religious reasons.

The ratio of the Mancino Law: 1) is to guarantee the peaceful coexistence between the groups divided by strong systems of thought. The protection of this interest limits justifiabily the freedom of demonstration of thought. Where as homophobia and transphobia are phenomena that don’t create a widespread hostility and persecutory climate that would justify a differentiated legal protection.

2)Sanctions ethnic,ratial,politcal,religious hatred motivated by historical reasons  ethnocentrism, ratial,poltical,religious hierarchy is shared socially. Sexual orientation choices are subjective and don’t necessarily presuppose victim’s vulnerability (disabled individuals  objectively vulnerable)

Draft Bill The cases referred to are those of "dissemination of ideas based on superiority or homophobic hatred ", "discrimination acts" or "violence committed in any way on the grounds of homophobia". basic criterion employed is that concept "homophobia" elaborated in the EU and beyond any lexical incongruity, introduced by the media in everyday language with the now acquired meaning of aversion towards homosexuals and transgender individuals. Since the draft bill punishes all those conducts aimed at expressing this aversion or motivated by it, it is clear that homosexuality and transsexuality are the values protected by these rules, set out precisely as " legal goods" deserving protection under criminal law. So, to anyone found carrying these "values" by virtue of its particular "sexual" costume, the penal system is called to provide ad hoc protection much wider than that afforded to its any other citizen.

The offenses outlined in the bill under discussion configure homosexuality and transsexuality as a collective value ​​to be protected beyond what the criminal system ensures to any ordinary citizen. Therefore, such protection could be invoked by any series of individuals on the basis of their personal circumstances We could imagine how similar protection could be extended to an infinite number of subjects by virtue of their propensities, lifestyle choices or personal characteristics, such as hunting and fishing lovers, over weight individuals, Tuscan cigar smokers, persons belonging to certain football team fans.

Discrimination acts and violence committed on grounds of homophobia homosexuals and transsexuals already enjoy legal instruments against any form of unjust discrimination, violence, offense to personal dignity under the Criminal Code foreseen for all citizens. Article 3 of the Italian Constitution reads that "All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. " Sex and personal conditions are therefore already covered by the Constitution as specific elements against which any form of discrimination are admitted.

Consequence  it would effectively entail unjustified favoritism among victims of violence, in breach of the principle of equality before the law Moreover  Art. 61 of the Italian Criminal Code already recognizes 'abject and/or futile motives' as aggravating circumstances”

LGBTI fall into contradiction Ask for equality of treatment same as heterosexuals But ask different legal protection in case of homphobic or transphobic offences

1) intro of criminal aggravating circumstances for socially disapproved acts would constitute a moral prevention with the purpose of promoting social awareness towards certain choices Critic: Recourse to criminal law for so called moralization intentions is to be criticized because in a pluralist democracy  law does not concide with morals

Criminal sanction foreseen by legislator/applied by judge would express the gravitiy of the illicit fact Gravity/illicitness of fact deduced by punishment Punishment would take on moral and symbolic importance of representation of the value of certain assets prevention of offensive acts better way to educate to the interiorization of others sexual choices

Punishment of hatred for objective conditions (characterized by the vulnerabilty of the individual)such as disability or age cannot be compared with subjective choices, like sexual orientation cjoices

Introduction of a criminal aggravation for acts against individuals in specific conditions expresses disparity of treatment with regards to further possible motivations leading to equally serious acts of hatred. criminal aggravation could lead to intollerance towards anyone defending the relevance of nature for the law or the difference between man/woman

not possible to assess the real reason leading to the violence in the offender’s mind Consequence: Victim of presumed homophobic or transphobic offence would receive more favourable treatment compared to any victim of violence Principle of equality «cisgender or straightphobia»