PROTECTING WOMEN’S HUMAN RIGHTS THROUGH CRIMINALISATION

SOME CONSIDERATIONS ABOUT THE CASE OF FORCED MARRIAGES IN ITALY

Abstract

The migration flows towards Europe in the last decades have made contemporary societies multi-ethnical and multicultural. However, the cohabitation of people differing in ethnicity, language, religion, traditions (in a word, culture), raises conflicts, mainly deriving from the request, by minority groups, for recognition of their cultural specificities. These conflicts are frequent in criminal law, due to its function of safeguarding individual and collective interests, which cultural factors might offend. Within this background, a particular phenomenon has become to emerge, even if with difficulty: that of forced marriage, that to say a union contracted without the actual consent of at least one of the spouses, which has been obtained through violence, threats or even more subtle pressures. This hit mainly women and is particularly common in some cultures, for different reasons that are related with the patriarchal structure of the family. However, the cultural connotations of the phenomenon cannot disregard the concrete nature of these acts, which are a violation of women’s human rights, namely the right to free self-determination in one’s personal, familiar and sexual life. The international and European organisations had already condemned this practice: some documents recommending that States adopted adequate laws in order to repress it had succeeded each other, until the Istanbul Convention in 2011 even imposed an obligation of criminal prosecution. Thus, legislators all over Europe, at different times, have intervened to criminalise it, by introducing new ad hoc offences. Italy was one of the last to do so and a new crime was inserted in the criminal code by a Law in 2019. Such legislative choice all over Europe has been strongly criticised by the criminal and socio-anthropological sciences, accusing it to be merely “symbolic” and stigmatising, and risking to submerge the cases even more, given the fear of victims to accuse their families. However, the ministerial reports realised in Italy about the incidence of the denounced cases, show an increase of them from a year to another. The objective of this intervention – whose relevance consist in increasing awareness on a mostly unknown phenomenon of our modern multicultural societies – is thus to reflect on this evidence, also through an overview of other empirical researches, hypothesising that criminalisation can actually have a concrete role of protection of human rights, empowering victims and giving them an instrument of opposition.