La rilevanza penale dell’omofobia nell’ordinamento penale tedesco ed italiano

The present work analyses the phaenomenon of homophobia in the framework of criminal law, starting from an inquiry concerning the psychosocial and criminological origin of the prejudice toward LGBT people. In particular, the phaenomenon is explored within the context of complex interactions among groups where a pivotal role is covered by gender prejudices and by sex hierarchies in which sexism, heterosexism and hetero-normativism in male-dominated cultures are rooted. The analysis goes on by contextualizing homophobia within the Anglo-American criminological categories “hate crime” and “hate speech”, according to an interpretation that considers them as conducts which may potentially represent the seeds of genocide-related events and are therefore to be contrasted by criminal law per se as well as in a preventative fashion. On these basis, the study moves on to consider a set of juridical criticalities related to the endorsement of prejudice into criminal law provisions as a relevant element for aggravated sanctions. Furthermore the research analyses the most relevant provisions criminalizing hate crimes and hate speeches existing under the German legal system to sanction behaviours characterized by homophobia (§ 130 StGB, Volksverhetzung and the recently modified § 46 StGB, that sets out the criteria for setting the punishment); with reference to the Italian legal system, the so called “Legge Reale-Mancino” is analysed as the law on which basis hate crimes and hate speeches are mainly punished. Finally, in this context, the study will provide an analysis of the so called “DDL Scalfarotto” – the draft bill approved by only one of the two Italian legislative chambers and therefore not entered into force yet – which is going to modify the Legge Reale-Mancino by introducing homophobic and transphobic motives as further basis for applying the said law.