Abstract
This article explores the development and application of Italian case law since 2005 regarding the criminal responsibility of individuals with mental disorders, focusing on the landmark decision by the Joint Chambers of the Court of Cassation in the Raso case. This ruling transformed the interpretation of mental illness in the context of criminal responsibility. The article examines the impact of this shift, identifying diagnostic ambiguities and the challenges of applying the new standards, as well as the significant increase in insanity-related acquittals and the growing use of noncustodial preventive measures. The aim is to provide a critical overview of the legal and social consequences of these decisions, offering reforms and recommendations to improve the consistency and fairness of the Italian judicial system.
Keywords
Highlights
Post-2005 Italian case law has largely complied with the Joint Chambers of the Court of Cassation's landmark Raso decision, using Müller-Suur's “degree of diversity” criterion to evaluate the causal relationship between criminal conduct and mental disorders. This criterion helps distinguish between abnormal personality traits and disorders affecting the defendant's ability to control his/her actions.
There has been a notable rise in insanity-related acquittals in Italian criminal courts, leading to a 90% increase in noncustodial preventive measures over the past 20 years. This trend has overwhelmed psychiatric facilities and shifted the psychiatrist's role to that of a social controller, complicating the distinction between deviant behavior and true mental illness.
The application of the Raso rule has led to diagnostic ambiguities, with subjective evaluations of the “degree of diversity” causing uncertainty in determining insanity. This subjectivity can be exploited by the defense to obtain reduced sentences or acquittals, undermining the public's confidence in the criminal justice system.
The complexities in assessing whether a personality disorder fits the legal definition of insanity require detailed psychiatric evaluations. The criteria for determining insanity often conflict with the rule of law, leading to arbitrary decisions highlighting the need for clear criteria and reforms in the legal regime.
The article emphasizes the importance of using a continuum of symptoms rather than rigid diagnostic categories to improve legal certainty and coherence in court decisions. A comprehensive approach, including instrumental diagnostic tools and detailed clinical interviews, is crucial for accurately evaluating whether criminal behavior is a symptom of a decompensated personality disorder.
Introduction
The landmark decision by the Joint Chambers of the Court of Cassation in the Raso case transformed the interpretation of mental illness in the context of criminal responsibility and shaped the development and application of Italian case law.
This historical case offers the opportunity to critically overview legal and social consequences and to offer recommendations to improve the consistency and fairness of the Italian judicial system.
The Raso decision of 2005 revolutionized the interpretation of insanity within the Italian legal framework, prompting a decade-long evolution in case law. The “degree of diversity” criterion emerged as a pivotal factor in determining the presence of insanity. This signified the abandonment of the outdated “medical” stance in favor of a more nuanced “juridical” approach, emphasizing the distinction between the concepts of “mental illness” and “insanity” as well as the need for causal relationships between mental disorders and criminal acts.
Subsequent court decisions, spanning from the early 2000s to recent years, help elucidate the evolution of Italian case law regarding legal insanity. While some discrepancies exist in the application of the Raso precedent across different mental disorders, the overarching trend demonstrates adherence to its principles. A careful examination of the historical context, facts, and legal proceedings of the Raso case suggests focusing on the defendant's mental functioning and “symptomatic continuum,” rather than rigid diagnostic classifications. This analysis contributes to a deeper understanding of insanity case law in Italy and underscores the need for continual refinement in legal interpretation and application.
The landmark 2005 Raso decision: A case history
In the early morning hours of 27 December 2001, 68-year-old carpenter Giuseppe Raso awoke and got out of bed, walked down the stairs to the cellar of his middle-class apartment building in Piazza Verbano, in the Trieste neighborhood of Rome, and turned off the power to the unit of his upstairs neighbor, 63-year-old retired banker Vittorio Alemanno. This was Raso's usual way of dealing with what he alleged were disturbing noises from Alemanno's autoclave, which had become the object of continuing arguments, quarrels, and even legal complaints between the two since 1983. 1 When Alemanno showed up at Raso's door, a fight ensued between the belligerent neighbors, and Raso ended up shooting Alemanno twice in the head point-blank with a .38 Special Smith and Wesson revolver. The shooter, who also pointed the gun at Alemanno's enraged wife, was ultimately stopped by responding police officers.2–4
Raso, who had earned a reputation as the neighborhood “madman,” was widely known as a litigious, short-tempered, violent, threatening, frustrated and paranoid individual with a penchant for guns and ammunition.1,5 He was controlling and physical with his wife, to the point that his four daughters had left their dysfunctional household. Also, he was obsessed with purported “noises” coming from his neighbors’ units and had become unreasonably convinced that Alemanno and the entire building were out to get him and make his life miserable.1,3
Court proceedings
It should be noted that the Italian criminal justice system is based on a civil law tradition, and it operates on substantially different assumptions about mental disorders, legal culpability, and the relationship between psychiatry and criminal responsibility than those of common law-based systems. Specifically, the Italian Penal Code distinguishes between total insanity (“vizio totale di mente”) and partial insanity (“vizio parziale di mente” or “seminfermità”). While total insanity excludes criminal responsibility, this does not automatically result in compulsory hospitalization. Instead, the application of a security measure (such as placement in an Residence for the Execution of Preventive Measures (REMS), which stands for “Residenza per l'Esecuzione delle Misure di Sicurezza” (“Residence for the Execution of Security Measures”), is subject to a separate judicial assessment of the defendant's danger to society. On the other hand, partial insanity leads to diminished responsibility and typically entails a sentence reduction, possibly combined with therapeutic measures inside prison. This demonstrates that insanity in Italy does not function solely as a full defense, nor does it imply an automatic medicalization of the defendant. The criminal justice system remains attentive to the dynamic evaluation of both mental state and social risk.
Charged with aggravated intentional murder, Raso pleaded insanity, and experts for the prosecution and the Court were tasked with a psychiatric evaluation of the defendant. They all agreed on a diagnosis of paranoid personality disorder, with angioma of the brain cited as a contributing factor, and determined Raso's mental capacity had been partially impaired at the time of the murder. Specifically, the Court-appointed expert claimed Raso's persecutory ideation was basically a defense mechanism against the defendant's unwillingness and inability to accept his failures, shortcomings, and related sense of inadequacy, and even if it had not completely fragmented his identity in a psychotic fashion, it had nonetheless severely compromised his mental functioning. Thus, Raso was given a reduced sentence by the Court of Assizes of Rome. 4
The Court agreed that the specific personality organization of the defendant, when put under stress, led to a decompensated state resembling psychosis with delusional features and severe cognitive distortion (as in Otto Kernberg's borderline personality organization). 5 Thus, the diagnosis served as a starting point, but the final judgment was based on the demonstrated impact on the subject's volitional and cognitive faculties at the time of the act. This resulted in a finding of partial insanity, not full exculpation.
Eventually, the Court of Assizes of Appeal reversed the decision, arguing that only mental disorders with a proven anatomical substrate and acknowledged status as a mental illness fit the definition of “insanity” as per articles 88 and 89 of the Italian Penal Code. 4 This was in accordance with a rigid but consolidated case law dating back to the 1930s, that excluded personality disorders and neurosis-related disorders from those considered eligible to find a defendant legally insane (the thus-called “medical” stance). However, other scholars and judges had argued that the concepts of “insanity” and “mental illness” were not necessarily identical, therefore even personality disorders and neuroses could fit the definition of insanity if they had effectively impaired the defendant's capacity at the time of the murder (thus-called “juridical” stance).6–8
When the Joint Chambers of the Supreme Court of Cassation were tasked with settling the case law dispute, they upheld the latter stance. The Supreme Court argued that, regardless of diagnostic classifications and psychiatric models, the two requirements for a mental disorder to fit the definition of insanity according to the Penal Code are the following: an effective impairment of the defendant's mental functioning, to the point that his/her ability to adapt to what criminal law demands is nullified, and a causal relationship between insanity and offense, meaning the crime has to be “symptomatic” of the defendant's impaired mental functioning (the thus-called “sector-based criminal responsibility”). Thus, personality disorders can fit the definition of “insanity,” provided they meet the criteria set forth by the Court.4,9
Unlike in most common law jurisdictions, where the thus-called “M’naghten Rule” links insanity to a defendant's capacity to understand the nature and quality of his act and knowing right from wrong, the Italian model includes an additional requirement of causal connection between mental disorder and criminal behavior. Italian law not only requires the presence of a mental disorder but also that this disorder actually caused the exclusion (or at least partial impairment) of the defendant's capacity to understand and/or to will. This, according to the Italian Supreme Court of Cassation, entails a causal link between the disorder and the offense, which is assessed by forensic psychiatrists and ultimately by the court. The underlying rationale is that a mental disorder or illness per se is not exculpatory unless it has actually impaired legal competence at the time of the act. Only if the offense is somewhat “symptomatic” of the mental illness involved a defendant may be found insane by the court. This causal model is considered essential to avoid purely nosological reasoning. Instead of relying solely on diagnostic categories (e.g. psychotic disorders vs. personality disorders), the focus is on the psychological functioning of the individual during the commission of the offense, including: ego functions (e.g. reality testing, impulse control), mentalization abilities, identity cohesion, and the individual's relation to the norm.
The Court's decision was crucial in Italian case law in that it marked the complete abandonment of the obsolete and rigid “medical” stance, based on outdated psychiatric doctrines and conceptions of mental illness. As a result of the decision, Giuseppe Raso was again given a reduced sentence by the Court of Assizes of Appeal. 10
The causal relationship in the aftermath of the Raso decision
First decade of the 2000s
In the summer of 2005, the First Chamber of the Italian criminal Court of Cassation dealt with the case of an uxoricidal husband who had murdered his estranged wife in a fit of rage after she had threatened to ask other man for money in exchange for sexual favors to pay her car insurance policy. The defendant had been diagnosed with bipolar disorder (improperly named “bipolar personality disorder” in the decision). It is worth noting that the Court saw fit to apply the Raso rule even though the Joint Chambers had specifically mentioned personality disorders, not mood disorders, in their ruling. Apart from that, the argumentative structure of the decision complied with the legal precedent. Specifically, the Court applied the criterion of the “degree of diversity between the usual behaviors and responses of the defendant and his abnormal or deviant conduct” (Hemmo Müller-Suur's “insanity value”), 11 first introduced in the 1986 Ragno decision 12 and later echoed in Raso. Given the fact that the defendant's motive was not illogical or incomprehensible—he had murdered his wife in response to her provocation, along with the fact that violence was not out of the defendant's character—he had already threatened his wife with death and had a criminal record for violent robberies, the Court ruled out the presence of a causal relationship between the disorder and the offense. In essence, the disorder had not “alienated” the defendant in such a way as to prevent him from controlling his actions and knowing right from wrong. 13
Again, the Court of Cassation ruled out causal relationship in a case involving a car thief diagnosed with antisocial personality disorder, stating that “the existence of an impulse to act is not enough in itself to determine a behavior that is not coherent with the defendant's system of values.” 14
In 2009, the First Chamber vacated a decision of the Court of Assizes of Appeal that, according to the Supreme Court, had ruled out insanity based on arguments that overlooked the behavioral abnormalities connected with the offense, deemed inconsistent with the cognitive abilities of the defendant, who had desperately murdered his handicapped daughter and twice attempted suicide. Thus, the Court of Appeal had ignored the “degree of diversity” criterion and the Raso precedent. It should be noted that the defendant was diagnosed with adjustment disorder. Again, the Court saw fit to apply the Raso rule even though personality disorders were not mentioned in the diagnosis. 15
In 2012, the Second Chamber ruled out a causal relationship between the defendant's gambling addiction (not a personality disorder) and the robbery he had committed, arguing that the defendant's need for money stemmed from his gambling losses rather than a purported “compulsion” to gamble the proceeds. Moreover, the professionalism and lucidity shown in the commission of the crime were deemed inconsistent with a “pathological” or “insane” motive. 16
The First Chamber dealt with a similar case in 2014. This time, however, the decision of the Court of Appeal was vacated because causal relationship had been ruled out without ordering a psychiatric evaluation aimed at ascertaining the severity of the borderline personality disorder afflicting the defendant—a policeman who had kidnapped a classmate of his son to extort money from his family. According to the Supreme Court, the desperation, amateurishness, and irrationality shown in the offense were a far cry from the usual personality organization, known as a rational person with no prior criminal record. Thus, the Court of Appeal should have considered the defendant's condition more carefully. 17
Recent decisions
In 2021, the First Chamber of the criminal Court of Cassation upheld a decision of the Court of Appeal concerning a case of double murder committed in the context of a neighborhood dispute. The Court had ruled out a “severe impairment of the defendant's sense of reality,” citing his lack of a previous psychiatric or mental health history as well as the organization shown in the commission of the offense, deemed inconsistent with psychopathology. Again, the “degree of diversity” criterion made the difference between upholding and rejecting of an insanity defense. 18
A year later, the Fifth Chamber argued that the irrational behavior of the defendant, a car thief diagnosed with bipolar disorder (again improperly named “bipolar personality disorder”), deemed inconsistent with a financial motive, should have led the Court of Appeals to more carefully consider the presence of a causal relationship between the disorder and the offense, instead of ruling it out based on the simplistic assumption that bipolar disorder is more typically associated with crimes of violence. Thus, a legal precedent was set that the different nature and/or behavior in two offenses is not enough in itself to rule out a causal relationship between one of the two offenses and the defendant's disorder.19,20
Finally, in 2023, the Sixth Chamber vacated a decision by the Court of Appeals of Milan, citing improper application of the Raso precedent in relation to a case involving a defendant diagnosed with a delusional disorder. The Supreme Court argued that the Raso decision specifically refers to personality disorders, not psychotic disorders, and that in the presence of such a severe mental illness, the causal relationship between the disorder and the offense should be evaluated more laxly. 21
Discussion
Other than a few slips in terms of diagnostic classifications, as well as the application of the Raso precedent in relation to cases involving diagnoses of bipolar disorder, adjustment disorder, gambling addiction, delusional disorder, depressive neurosis, internet addiction, and major depressive disorder, it can well be said that post-2005 Italian case law mostly complied with the Joint Chambers’ landmark decision.
Constant reference was made in the decisions to Müller-Suur's “degree of diversity” criterion. Whenever the defendant's criminal conduct showed consistency with his/her usual behaviors and responses, lucidity, professionalism, and the motive did not appear illogical or incomprehensible, this was used as an argument to rule out a causal relationship between the offense and the disorder afflicting the perpetrator. Instead, the disorder was dismissed as “abnormal personality traits,” which, according to the Raso decision, are irrelevant in terms of insanity. 22 It was the same in the case of mental disorders that represented a mere antecedent of the offense, as in gambling-related crimes. On the other hand, whenever the commission of the offense showed behavioral abnormalities, or even a general irrationality, poor sophistication, disorganization, or desperation that were inconsistent with the perpetrator's usual attitudes, the Supreme Court ruled in favor of the possibility that the diagnosed disorder may prevent the defendant from controlling his/her actions and knowing right from wrong.
All this aligns with the abandonment of the rigid “medical” stance by the Joint Chambers, which is the most relevant hermeneutical accomplishment of the Raso decision and allows for a more adequately “personalized” and “modulated” punishment, as required by article 27 of the Italian Constitution.
Some critical aspects related to a sometimes indiscriminate and improper application of the Raso rule, as well as to a growing trend toward overextending the concepts of mental incapacity and insanity, deemed consistent with the most diverse impairments or alterations in the mental functioning of a defendant, should be highlighted.
First of all, there has been an increase in the number of insanity-related acquittals in Italian criminal courts, resulting in an excessive use of noncustodial preventive measures, up 90% in less than 20 years. 23 Eighty-five percent of these acquitted defendants need to be committed to REMS (the former Italian forensic psychiatric hospitals), and this means both overwhelmed psychiatric facilities as well as a shift in the psychiatrist's role to that of a social “controller” and “filter”: a role that is certainly out of his/her responsibility. This also results in a process of “medicalization of deviance” (antisocial and/or violent behaviors). According to recent statistics, a significant number of criminal offenders sentenced to noncustodial preventive measures do not suffer from serious mental disorders. In the past, such cases were exceptions, now they have become the norm. 24
Of course, suffering from a mental disorder should and must be considered a mitigating factor when an offense is committed but, at the same time, insanity-related acquittals should and must be more strictly regulated.
The critical criminological and sociological perspectives of Foucault and Castel argue that psychiatric institutions can sometimes function as tools of normalization rather than pure treatment. In our manuscript, the reference is used in this theoretical context, and we will specify this in the revision to avoid ambiguity. To further clarify, it is important to consider the contribution of Franco Basaglia and the Italian psychiatric reform movement, which strongly opposed the use of psychiatry as a means of social control. Basaglia's critique of institutional psychiatry emphasized the dehumanizing and custodial nature of psychiatric hospitals, advocating instead for a model centered on care, dignity, and the protection of individual rights. This perspective culminated in the enactment of Law 180 of 1978, commonly known as the Basaglia Law, which led to the closure of asylums in Italy and redefined the role of psychiatry in society. The law also restructured the framework for involuntary treatment (“Trattamento Sanitario Obbligatorio”), limiting it to cases where it is strictly necessary, and always under judicial and medical scrutiny, therefore emphasizing the principle of proportionality and the safeguarding of patients’ civil liberties. Basaglia's reform, grounded in both ethical imperatives and empirical critiques of institutional practices, aligns with a broader vision of psychiatry that resists reductive models of danger and deviance. Rather than perpetuating a narrative of control, it aims to restore agency and foster recovery, in line with modern person-centered and community-based approaches well-documented in the scientific literature.7,10
To date, and way too often, the criteria for determining insanity come into conflict with the rule of law, resulting in mostly arbitrary decisions related to mentally disordered offenders. Consequently, it is necessary to ponder, rectify, and apply reforms to the current legal regime, still based solely on the “double track” of sentences and preventive measures.
Other critical aspects related to the application of the Raso rule can be summarized as follows: a diagnostic ambiguity, as the evaluation of the “degree of diversity” may be subjective and therefore vary depending on the expert consulted each time. This can lead to uncertainty in the determination of insanity; the potential for abuse, as the defense may strategically exploit a psychiatric diagnosis in order to obtain reduced sentences or even acquittals; a juridical ambiguity, as the extension of the concept of insanity may lead to confusion about which mental disorders can actually be included in it, and the resulting decision may not properly reflect individual responsibility, undermining the public's confidence in the criminal justice system. 25
Use of terminology that has more to do with the “symptomatic continuum” or “cluster” displayed by the defendant, as well as his/her mental functioning, and less with rigid diagnostic categories (such as personality disorders), would benefit coherency between future decisions and legal certainty, all the more thus in light of new symptomatologic manifestations that have yet to be included in standard diagnostic classifications.
There are several problems inherent in psychiatric evaluation. The Supreme Court of Cassation has ruled that, in specific instances, a decompensated personality disorder can be considered tantamount to clear-cut psychosis and therefore can fit the definition of insanity. However, given the fact that very often a psychiatric report is seen as an instrument to protect the offender against lengthy prison sentences, if not as an individual interpretation of criminal law, the landmark Raso decision, and particularly its indiscriminate and broad application, may lead to excessive subjectivity on the expert's part. It is easy to link the criminal behavior of a psychotic patient to his/her illness, but far more complicated to determine if a seriously dysfunctional behavior is directly related to a decompensated personality disorder that impacts the defendant's ability to know right from wrong and control his actions, or is simply an abnormal manifestation of a personal or social distress. 26
Legal terminology fails to clarify when a deviant behavior can qualify a personality disorder as insanity, and psychiatrists themselves experience technical difficulties measuring this; as a result, many of the post-2005 decisions in which the Raso rule was applied are related to defendants with dysfunctional and abnormal personalities, but without additional psychopathological factors that generated psychophysical states different from the usual conditions of the defendants, with aspects of ineffability and incomprehensibility, such as in the psychotic deterioration of a borderline patient. This results in a diagnosis of personality disorder being erroneously considered tantamount to a partially impaired capacity, and a criterion of theoretical compatibility between the offense and the offender's mental disorder being applied instead of actually ascertaining if the offense can be considered a symptom of the psychopathological condition afflicting the defendant. Therefore, for a defendant to be found legally insane, the presence of a real and effective modification of his/her consciousness due to either a formal alteration of his/her thought or a hallucinatory syndrome must be proven. 26
It is also crucial to identify specific criteria to be used in the evaluation of the offender's criminal conduct, since if the defendant is diagnosed with a personality disorder, only a conduct that is serious enough to actually affect the patient's entire way of life and has all the connotations of a real mental illness (in other words, having an initial stage and an evolution) can result in an acquittal on grounds of insanity, whereas a mere quantitative alteration of personality traits is irrelevant. It is necessary to draw conclusions on a case-to-case basis to establish whether the offense committed by the defendant is a symptom of a mental illness. 27
Psychopathic personalities are characterized by a pattern of abnormal responses to environmental stimuli: however, these are egosyntonic, finalistically oriented reactions that are devoid of guilt and are structured according to a lucid, even if twisted, criminal purpose. This type of personality is well-preserved, compensated, and does not feature the destructuration and deterioration that are typical of decompensated borderline personalities or psychotic organizations. In these cases, the mental functioning and the acting out remain within the boundaries of what the Italian Criminal Code calls “emotional and passionate states” (Article 90 of the Italian Criminal Code). 25 These can certainly be symptoms of personality disorders, but, by express wish of the Italian lawmakers, do not constitute legal insanity.
According to Fornari, 25 for a serious personality disorder to fit the definition of legal insanity, a serious psychological impairment where Ego defense mechanisms are poorly structured (e.g. primary defense mechanisms), Ego is fragile, identity is fragmented, diffused and disturbed, and reality testing is impaired (thus-called “psychotic shifting”) is needed. As a result, the criminal act will appear bizarre, grossly disorganized and incoherent.
Of course, a comparison between the offender's behavior before, during, and after the offense is necessary. Difficulties also arise when there is both a psychiatric and a substance abuse diagnosis, all the more thus considering that substance abuse per se not only does not constitute insanity according to the Italian Criminal Code, but also carries an increase in the sentence, with the exception of chronic conditions (Article 93 of the Italian Criminal Code).
Neurotic personalities, like psychopathic personalities, are characterized by the absence of psychosis and by a well-preserved contact with others, even if affected by groundless feelings of inadequacy and guilt. The criminal conduct of psychopathic, neurotic, and nondecompensated borderline patients often manifests itself in the form of destructive behaviors directed at others in response to real or pathological stimuli. These conditions, when they constitute the defendant's standard way of being in the world and interacting with others, do not fit the legal definition of insanity. They can, however, constitute mental illness when there is an obvious fracture with the defendant's usual way of life, a clear disproportion between the event that caused the reaction and the intensity of the reaction itself, impairment of consciousness with amnesia, nonfinalistically oriented alterations of the fundamental instincts, and altered perception. 27
Conclusions
The Joint Chambers’ 2005 Raso decision reshaped the interpretation of insanity in Italian case law, to the point that now even mental disorder without a proven anatomical substrate (such as personality disorders) can fit the definition of legal insanity if they effectively impaired the defendant's ability to discern right from wrong and control his/her actions at the time of the crime. In addition, the offense should show a causal relationship with the disorder and should be considered “symptomatic” of the disorder (in the actual Raso case, the defendant committed a murder during what was deemed to be a psychotic break related to decompensated borderline mental functioning in a patient diagnosed with a paranoid personality disorder, and he was sentenced to a reduced penalty due to his partial incapacity).
This change on one hand marks the abandonment of a rigid, organicist, and categorical system that neglected a patient's individual history and variables (and this is the actual subject matter of psychiatry), while on the other hand, by focusing on the biopsychosocial factors of mental disorders, it leads to an excessive overextension of the concepts of mental incapacity and insanity.
In many cases, the Raso rule has not been applied correctly because the Supreme Court experienced difficulties in determining the actual seriousness of the different disorders diagnosed to defendants as well as their actual impact on the patients’ mental capacity.
Furthermore, the evaluation of the seriousness of the disorder requires a retrospective study of the defendant's personality, and this is in stark contrast with article 220 of the Italian Code of Criminal Procedure, that prohibits a personological, psychological, or criminological report from being introduced as evidence in the proceedings. 28
According to recent neuroscientific perspectives, criminal behavior in patients with personality disorders is related to neurochemical alterations, meaning even these disorders may have an anatomical substrate. 29 Thus, the evaluation of the “degree of diversity” is a complex and delicate element that requires an in-depth psychiatric report.
The Raso rule should not be indiscriminately applied to offenders or subjects with antisocial behaviors, erroneously linking criminal conduct to personality disorders, wrong diagnosis (such as the nonexisting “bipolar personality disorder”), or an adjustment disorder, and criminal behavior should be accurately evaluated using adequate diagnostic tools. In the forensic-psychiatric field all available instruments are of pivotal importance: diagnostic tools; focused psychodiagnosis; analysis of the available medical documentation; and accurate clinical interview. All these investigations on the patient and with the patient aim at ascertaining lifestyle, personal history, neurodevelopment, usual way of interacting with others and reacting to certain stressful contexts, neuropsychological status and mental functioning. Diagnostic classification should be linked to a symptomatologic continuum rather than rigid diagnostic categories. Even in the presence of a serious personality disorder, the expert must analyze the criminogenesis and criminal dynamic of the offense in order to establish, based on the defendant's account and recollection of the event, if the offender was able to understand the meaning of his behavior and its impact In fact, if the functional areas (perceptive, memory, organizational, predictive, decision-making, and executive functions) of the defendant's Ego were intact at the time of the crime, insanity must be ruled out.
The Raso precedent has been applied in relation to cases involving diagnoses of bipolar disorder,13,19,30 adjustment disorder,15,23 gambling addiction,16,17 delusional disorder, 21 depressive neurosis, 30 internet addiction, 30 and major depressive disorder, 30 and it can well be said that post-2005 Italian case law mostly complied with the Joint Chambers’ landmark decision.
Constant reference was made in the decisions to Müller-Suur's “degree of diversity” criterion. Whenever the defendant's criminal conduct showed consistency with his/her usual behaviors and responses, lucidity, professionalism, and the motive did not appear illogical or incomprehensible, this was used as an argument to rule out a causal relationship between the offense and the disorder afflicting the perpetrator. Instead, the disorder was dismissed as “abnormal personality traits,” which, according to the Raso decision, are irrelevant in terms of insanity. 4 It is the same in the case of mental disorders that represented a mere antecedent of the offense, as in gambling-related crimes. On the other hand, whenever the commission of the offense showed behavioral abnormalities, or even a general irrationality, poor sophistication, disorganization, or desperation that were inconsistent with the perpetrator's usual attitudes, the Supreme Court ruled in favor of the possibility that the diagnosed disorder may prevent the defendant from controlling his/her actions and discerning what is right from what is wrong.
All this aligns with the abandonment of the rigid “medical” stance by the Joint Chambers, which is the most relevant hermeneutical accomplishment of the Raso decision and allows for a more adequately “personalized” and “modulated” punishment, as required by Article 27 of the Italian Constitution.
It would be appropriate for the Joint Chambers to clarify whether the Raso rule should really be applied only to personality disorders or to mental disorders in general, as the latter interpretation is clear in post-2005 decisions where reference is made to the Joint Chambers’ ruling even in the absence of a personality disorder diagnosis. In fact, a decision where the Raso rule had been applied to a case involving a delusional disorder diagnosis was ultimately vacated by the Supreme Court.
Research supports the authors’ opinion that use of terminology that has more to do with the “symptomatic continuum” or “cluster” displayed by the defendant, as well as his/her mental functioning, rather than rigid diagnostic criteria, would benefit coherency between future decisions, legal certainty, and better compliance with the Raso precedent. Since they are mere synchronic representations of patients’ behaviors and symptoms, psychiatric diagnoses are only the first step in determining how a given disorder impaired the defendant's ever-changing mental functioning at the time of the offense.
The Raso decision had a significant impact on Italian case law but also generated heated debates and concerns related to its practical application, as well as its juridical and ethical implications. The practical difficulties related to ascertaining the actual impact of a personality disorder on the defendant's mental capacity require detailed psychiatric evaluations that can vary from case to case. Consequently, clinicians are constantly exposed to the risk of wrong diagnosis, inadequate therapeutic pathways, enormous costs for the SSN (the Italian National Health Service), and even risks for the entire community.
The ongoing discussion between professionals in the fields of law, psychiatry, forensic psychiatry and lawmakers should be implemented effectively in order to correct those mistakes that can cause a damaging, cascading effect in all involved fields, generating confusion and a situation in which the concepts of treating a perpetrator or his/her serving a sentence are totally subverted to the detriment of those who actually need therapy, as well as the entire justice and social system.
Footnotes
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.
