In modern pluralistic society minorities and indigenous groups sometimes ask the legal system to recognize their cultural heritage and their costumary law in deciding criminal cases. This request is often rejected by the Courts, because of the difficulty of adopting solutions which appear prejudicial to the rights of victims and because of the need to solve conflicts that require special knowledge and expertise in cultural matter. Especially in United States of America there is an extraordinary range of cases in which individual attempted to invoke a special legale excuse, the "Cultural Defense", in order to avoid penalty or to obtain a mitigation of sanctions. This legal institute has appeared first in the judicial practise and then recently has become object of careful study by scholars, who have shown some features and characteristic, including arguments for and against the acceptance of this excuse. This study attempts to analyze the Cultural Defense and the Cultural Motivated Crime (Cultural Offense) precisely starting from the U.S. legal framework to reach Europe and Italy, where cultural diversity is mostly represented by immigrants and nomadic people. The aim is to understand the possible relevance in these Country, especially in Italy, of defendant's cultural background in explaining criminal behaviour. After examining the most recent legislative reforms in criminal law and judicial practise, it may be possible to underline some points of convergence or dissonance with U.S. context and to highlight the current trend in progress into Italian criminal justice system about the possibility for Courts to take into account cultural factors to consider and evaluate the personal culpability and to mitigate sanctions.

(2010). I percorsi delle cultural defenses tra garanzie di legalità e richieste di riconoscimento delle identità culturali. (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2010).

I percorsi delle cultural defenses tra garanzie di legalità e richieste di riconoscimento delle identità culturali

FERLA, LARA
2010-01-25

Abstract

In modern pluralistic society minorities and indigenous groups sometimes ask the legal system to recognize their cultural heritage and their costumary law in deciding criminal cases. This request is often rejected by the Courts, because of the difficulty of adopting solutions which appear prejudicial to the rights of victims and because of the need to solve conflicts that require special knowledge and expertise in cultural matter. Especially in United States of America there is an extraordinary range of cases in which individual attempted to invoke a special legale excuse, the "Cultural Defense", in order to avoid penalty or to obtain a mitigation of sanctions. This legal institute has appeared first in the judicial practise and then recently has become object of careful study by scholars, who have shown some features and characteristic, including arguments for and against the acceptance of this excuse. This study attempts to analyze the Cultural Defense and the Cultural Motivated Crime (Cultural Offense) precisely starting from the U.S. legal framework to reach Europe and Italy, where cultural diversity is mostly represented by immigrants and nomadic people. The aim is to understand the possible relevance in these Country, especially in Italy, of defendant's cultural background in explaining criminal behaviour. After examining the most recent legislative reforms in criminal law and judicial practise, it may be possible to underline some points of convergence or dissonance with U.S. context and to highlight the current trend in progress into Italian criminal justice system about the possibility for Courts to take into account cultural factors to consider and evaluate the personal culpability and to mitigate sanctions.
BERTOLINO, MARTA
Culture conflicts; multiculturalism; cultural defense; cultural motivated crime; comparative study on the cultural defense; cultural evidence
IUS/17 - DIRITTO PENALE
Italian
Scuola di Dottorato in Scienze Giuridiche
SCIENZE GIURIDICHE - 46R
22
2008/2009
(2010). I percorsi delle cultural defenses tra garanzie di legalità e richieste di riconoscimento delle identità culturali. (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2010).
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/10281/9456
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