Plagio

The Italian term plagio derives from Latin plagium ("subterfuge"), which in Roman law indicated the sale of a man known to be free as a slave, or the taking away — by persuasion or corruption — of another person's slave.^[1]

In criminal law, plagio was the offence contemplated by art. 603 of the penal code, which established the punishment of imprisonment from 5 to 15 years for whoever subjected "a person to his power so as to reduce them to a total state of subjection".^[2]

It was the Fascist delegated legislator, with the penal code approved in 1930 and still in force, who provided for the offence of plagio (art. 603) for the first time as a distinct offence from the crime of reduction to slavery (art. 600), contrary to the opinions expressed by the parliamentary commission entrusted with drafting the code, by the Royal commissions of lawyers and prosecutors of Naples and Rome and by the Court of Appeal of Naples. In the republican era (which started in 1946), initially the offence of plagio was considered a crime comparable to reduction to slavery; therefore, in the action of the plagiary upon the plagiate the intention to obtain an advantage had to be found. Subsequently the Court of Cassation, on 26 May 1961, defined plagio as "the establishment of a psychic relationship of absolute subjection of the passive subject to the active subject".^[3]

Following a question of constitutional legitimacy, the Constitutional Court, with the above-cited judgment no. 96 of 8 June 1981 (President: Leonetto Amadei; rapporteur: Edoardo Volterra) held the constitutional illegitimacy of art. 603 c.p., effectively removing it from the criminal legal order, as it was contrary "to the principle of specificity of the offence contained in the absolute reservation of law in criminal matters, enshrined in Article 25 of the Constitution".^[4] Specifically, according to Professor Giovanni Flora, professor of criminal law at the University of Ferrara, the Court established the indeterminacy of the wording of the criminal offence "essentially adducing the unverifiability of the fact contemplated by the offence, the impossibility anyhow of its ascertainment by logical-rational criteria, and the intolerable risk of arbitrariness by the judging magistracy".^[5]

The judgment also states among other things:

Among psychologically normal individuals, the expression by one human being of ideas and convictions about other human beings can provoke the acceptance of the ideas and convictions thus expressed and give rise to a state of psychic subjection in the sense that this acceptance constitutes a transfer to others of the product of the agent's psychic activity and therefore a limitation of the determinism of the subject. This limitation, as has been scientifically identified and ascertained, can give rise to typical situations of psychic dependence which can also reach, for more or less long periods, high degrees as in the case of a love relationship, the relationship between priest and believer, between teacher and pupil, between doctor and patient, and can also give rise to relationships of mutual influence. But it is extremely difficult if not impossible to identify in practice and distinguish for legal consequence — with regard to hypotheses like the one in question — the psychic activity of persuasion from that also psychic activity of suggestion. There are no reliable criteria to separate and qualify one activity from the other and to ascertain the exact boundary between them.

The crime of plagio had rarely been prosecuted in Italy, and only one person, Aldo Braibanti, was ever convicted after the Second World War, for his relations with a younger man he was accused of brainwashing into communism and homosexuality in 1964.^{[citation needed]} It was later declared unconstitutional by the Constitutional Court with decision no. 96 of 8 June 1981.^[9] The court found the law to be so vague that it failed to meet the criteria set out in Article. 25 of the Constitution. Specifically, the substance of the crime was impossible to fully assess with logical-rational criteria, creating an intolerable risk of arbitrary prosecution and conviction.^[10] Indeed, the cited judgment reads:

In ancient law and until the beginning of the modern age the offence of plagio was inherent in the legal institution of slavery understood as the state of man not having legal personality [...]. From the end of the 18th century, with the progressive acceptance of the principle of equality of the legal status of persons and the consequent progressive abolition of slavery [...] it is conceived as a crime against individual liberty.^[11]

A few years after the declaration of unconstitutionality of the plagio at the presence of Leonetto Amadei, the President of the Constitutional Court of the Italian Republic, Mario Di Fiorino organized a scientific conference in Forte dei Marmi in 1989 on "Socially accepted persuasion, plagio and brainwashing", to discuss the new situation.^[12]

In recent decades in Italy several bills have been submitted to Parliament (for example the one presented to the Presidency of the Senate in April 1988 on the initiative of ministers Rosa Russo Iervolino and Giuliano Vassalli) to reintroduce the offence of psychological plagio, but Parliament has preferred not to deal with it because the offence is not ascertainable with scientific criteria and methods, and the offence exposes citizens to the risk of abuses by the judiciary.^{[13][14][15][16][17]}

On 4 March 2005, during the XIV Legislature, the Senate Justice Committee approved a bill introduced by Senator Renato Meduri of National Alliance, to introduce an article 613-bis into the penal code, but the bill stalled.

The text of the bill, consisting of two paragraphs, read:

Art. 613-bis - (Mental manipulation). Unless the act constitutes a more serious offence, whoever, by means of techniques of personality conditioning or suggestion practised by material or psychological means, places someone in a continuing state of subjection so as to exclude or greatly limit the freedom of self-determination is punished by imprisonment from two to six years. If the act is committed within a group that promotes or practises activities aimed at creating or exploiting the psychological or physical dependence of participants, or if the perpetrator acted in order to commit an offence, the penalties referred to in the first paragraph are increased by one third to one half.

Figures from the Catholic and Protestant worlds, together with various legal scholars,^[18] expressed concern about possible approval of the bill, specifically regarding the risks it would pose for freedom of religion.

In a resolution of 30 May 2005 the Commission of evangelical churches for relations with the State (CCERS) reiterated

its concern about bill 1777, under consideration in the Senate, which provides for the offence of mental manipulation. The wording is such as to constitute a danger even for religious freedom. It risks criminalising any conversion induced by preaching and example. CCERS believes that there is indeed a danger of coercion of the will of individuals by conditioning techniques. However, the indeterminacy of the offence seems to reproduce the aspects that at the time led to the declaration of unconstitutionality of the offence of plagio. CCERS also notes that it does not provide as a necessary condition of punishability an advantage for the agent, thus affecting every form of conviction and transmission of thought and faith.

Donatella Poretti, of the Association for the Rights of Users and Consumers (ADUC), criticised the bill as a "law against religion".^[19] In an excerpt of her article published on the ADUC website she argued that such a law would affect monasteries and convents, ironically alluding to the (often sexual) rules that characterise them:

We really cannot believe [...] that a judge with a 'priest-eater' spirit would not be able to perceive in monastic institutions places in which personalities are destructured, in which people are mentally manipulated. If one thinks that becoming a priest, friar or nun is equivalent to limiting that whole physical and sexual part of man or woman who takes vows ...

Vincenzo Donvito, president of ADUC, appealed to parliamentarians to prevent the bill on mental manipulation from being approved, warning that it could be used to undermine citizens' rights to diversity.^[20]

On the other hand Dr Francesco De Fazio, director of the Institute of Forensic Medicine, of the School of Specialisation in Forensic Medicine and of the School of Specialisation in Clinical Criminology at the University of Modena, believes that although the Constitutional Court cancelled the offence, the concept of plagio itself remains a reality in interpersonal relationships,^[21] lamenting gaps in the protection of mental health, threatened, for example, in cases of recruitment by socially dangerous religious groups.

In countries such as France, Spain and Belgium there are provisions on "mental manipulation". Such provisions have been criticised by the major religions, which see in them a danger to freedom of religion.^[22] Indeed, movements and organisations integrated in major religions — such as Opus Dei, the Legionaries of Christ, the Catholic Charismatic Renewal, the Focolarini, the Neocatechumenal Way, Communion and Liberation — have sometimes been accused of being sectarian realities dangerous for their members.^[22]

In Anglo-American legal systems there is no crime equivalent to the Italian offence of plagio. In an article published in the legal journal American Bar Association Journal in 1971, Albert Borowitz, a US lawyer and scholar of the history of criminal law, proposed the expression "psychological kidnapping" as an attempt to translate into English the Italian term for psychological plagio.^{[23][24][25][26]} In the same article the author likens the concept of plagio to the English concept of "brainwashing", noting how phenomena of coercive persuasion can be observed indiscriminately in concentration camps, in prisons, in seminaries, in the relationship between patient and psychotherapist or even, more simply, in love relationships or in relationships between parents and children.

• Brainwashing
• Mental manipulation
• Aldo Braibanti
• Cult