Minority Religions, Social Change, and Freedom of Conscience
Salt Lake City and Provo (Utah), June 20-23, 2002
In Italy, we often hear the expression "plagio" [plagium in Latin] used as a translation for the English "brainwashing" (although a literal translation of "brainwashing", "lavaggio del cervello", is also used) such that, for example, such and such a person was "subjected to plagio" by "cults." This use of the expression "plagio" is rooted in article 603 of the 1930 Italian penal code (although, as we shall see, the article was repealed in 1981) that under the heading "plagio" mandated a jail term of five to fifteen years for "anyone who subjected an individual to his own will, so as to reduce that individual to a total state of subjugation."
The word "plagio" is not of recent coinage, being derived from Roman law. Already in ancient Rome in the third century B.C., "plagium" denoted the crime of someone who took illegal possession of a free man making him his slave, or stole someone elses slave. We find the particulars and circumstances of the Roman law on "plagium" in the Lex Fabia (third-second century B.C.) that included the hypothetical case of someone who used different ploys to represent a free person as if he or she were his slave (or introduced someone elses slave as his own). It also hypothesized the case of anyone who deprived a free person (or a freedman) of personal liberties, kept him in chains or sold him. Under Roman law and continuing in early Middle Ages codes, from the Visigoths to the Friesians, to "plagiarize" meant to illegally reduce a free person into slavery. Of course, we use the word "plagiarize" in English in a different sense, with respect to copyright infringement: but this is far from being casual. In his Epigram No. 52 Martial, the satirical Roman poet (A.D. 40-104) used the word "plagium" metaphorically: just as someone who seizes another persons slave by passing him or her off as his own is committing plagiarism, so someone who represents as his own a literary work that he did not create but pilfered from someone else, is also guilty of "plagiarism." From this original satirical metaphor is derived the current Italian word "plagio" that means both to reduce into subjection or slavery and to violate an authors copyright to literary or artistic works. Thus, the frequent English translation of "plagio" as "undue influence" is not necessarily correct; "plagiarism" would be more correct, but the dual meaning of the Latin word has not remained in other languages. We prefer to maintain the Italian "plagio" in order to avoid possible confusion.
After slavery was outlawed, the crime of "plagio" was retained, with the exact legal meaning of reducing a person into slavery, now always illegal. By extension, in the nineteenth century the word was also used to indicate the forced recruitment of soldiers into a foreign army. The first Italian penal code, published in 1889, used the traditional meaning of the term in article 145 that punished with twelve to twenty years of jail "anyone who reduces a person into slavery or other similar status." The crime referred to "physical human acts only that resulted in placing the victim in a material condition of dependency" through unlawful confinement or detention. 
Only one pre-Italian unification code, that of the Grand Duchy of Tuscany, included, in 1853, at article 358, an expanded meaning of "plagio" by punishing "anyone who, for any reason, and when the act does not constitute another crime, illegally seizes a person against the latters will, or even a consenting person who is less than fourteen years of age," in addition to recalling the traditional acts of the crime, such as "causing the person to fall into slavery" or "delivering the person to a military or naval foreign service." The Tuscan code however was not applied for very long and found no practical application, although it was hypothesized (amidst criticism and dissent) that even a seducer who corrupted girls under age, or even adult women, inducing them to perform acts against morality, could be accused of "plagio."  This extension of the meaning however was not retained in the 1889 Italian code, known as the Giuseppe Zanardelli (1826-1903) code.
The 1930 legislators made a distinction between slavery as a legal status and slavery as a factual condition. Anyone reducing a person to a condition of slavery (legal status)--for example, by bartering or selling that person in countries where slavery was not abolished--was to be punished pursuant to article 600. And anyone who "subjected a person to his or her own power so as to reduce that person in a total state of subjugation," thus reducing her to a factual condition of slavery but without representing that person as technically a slave or without intending to barter or sell that person, was to be punished under article 612 of the draft bill (which became article 603 of the Code). There is an important change between the bill and the final law. In the bill, article 612 described "a state of subjugation so strong as to totally suppress individual freedom"; in the Code, the words became "total state of subjugation." This change had taken into account, at least in part, the many criticisms that had been levied against article 612 of the bill. For example, the Royal Bar Association of Milan had noted that "the expression "subject to ones own power" could give rise to excessive, even dangerous interpretations." For their part, the Naples Royal Bar Association and the Naples Union of Lawyers had asked whether the aim was to "punish someone's act of subjecting an individual to his own power by way of hypnotism or other similar means." 
Clearly, in Italy the debate on the powers of hypnotism predated the American controversies on communist brainwashing by some twenty years.  The same majority in the Committee in charge of examining the new Code was against the new wording and "had argued for the appropriateness of retaining for "plagio" the ancient meaning of reducing someone into slavery or a similar condition. It had stated its opposition to the proposed addition of a new act fitting this offense that was not mentioned in the previous codes. The Committee had insisted on the appropriateness of not changing the traditional representations. They had warned of the danger of using ancient terms that they considered lexically reliable and hallowed by over two thousand years of linguistic use and of legislative and judicial experience to refer to brand-new instances unknown until then, with the result of confusing fundamental legal concepts and creating obfuscation. " 
Then Justice Minister Alfredo Rocco (1875-1935), in a report that several years later the Constitutional Court was to find "lacking and poorly grounded,"  believed however that it was necessary to keep the proposed language and "used the term "plagio" with an entirely different meaning than that of the earlier codes, the 1889 code in particular, and unlike the ancient original meaning."  By so doing, a "new statute was created that carried a very serious penalty [and that] was unknown in previous Italian and European law."  Even though they were unaware of it, the 1930 Italian legislators, for the first time in the worldbefore the CIA and Edward Hunterwere treating as a criminal activity what later would be called brainwashing.
Until 1960, no effects followed the introduction into the Italian penal code of article 603. In the first forty years of its existence, there were very few plagio trials, for the most part dealing with seductions of a sexual nature, and all ended in acquittals.  In 1961, the Supreme Court handled the first case of plagio, in which an elementary school teacher, after seducing a young girl, had kept her confined in a very small house, under lock and key, without allowing her to go out. The Court overturned the judgment on the merits, ruling that in that specific case the judges had not sufficiently inquired whether instead of plagio it might not be a case of "spontaneous passion" and "total, voluntary sexual devotion." It did rule that, in theory at least, article 603 could apply to the "creation of a psychological relationship of total subjection of the passive subject to the active subject, so that the former becomes subjected to the latters power, with full or almost complete suppression of the formers free self-determination." 
In effect, the hypothetical case acknowledged by the Supreme Court resembled brainwashing. There were no developments until 1968, when the Rome Court of Assizes sentenced Aldo Braibanti in a case that became notorious. A self-taught philosopher, Braibanti had taken into his home two young men to work as "secretaries" and confined them to small rooms, wearing them out (according to the prosecution) by not feeding them and by depriving them of sleep and of contact with the outside world until he had brought them to a state of homosexual subjugation. On July 14, 1968 Braibanti was found guilty of plagio by a jury; the Court of Appeals of Rome (against in a jury trial) upheld the judgment on November 28, 1969, and the Supreme Court did the same on October 21, 1971.  With a statement that could have been borrowed from the debates that were taking place contemporaneously in the United States on brainwashing, the Supreme Court (going beyond the judgments on the merits) described Braibantis plagio as a "situation in which the psyche of the coerced person was emptied, this being possible even without resorting to physical violence or the administration of pathogenic drugs, but using various means taken not one by one but as a whole, and measured against the physiological and psychological level of the victim and the degree of resistance that he could muster against the oppressor."
The trial gave rise to the " Braibanti case" that, to be sure, should be seen in the context of the political climate of the time. The case led major Italian left-wing intellectuals such as the novelists Alberto Moravia (1907-1990) and Umberto Eco and a large number of attorneys and psychiatrists  to petition for the abolition of the crime of plagio. The debate produced a wide body of literature that revolved around two types of criticisms of article 603. The first body of criticism was empirical: contrary to what the Italian judges believed, the phenomenon of plagio does not exist nor can it be verified, if we presume that such a condition of utter subjugation cannot be achieved merely with psychological tools.  Most psychiatrists, the critics claimed, agreed on this point. Even if this were not the case, doubt would suffice to make such a rule vague and undetermined, therefore contrary to the constitutional principle of legality.
The second body of criticism was political: the critics argued that the rule masked an attempt at ideological discrimination. Accordingly, Braibanti was found guilty not because the method he used on his "secretaries" was unusual (as a matter of fact, similar methods of indoctrination were commonly used in other contexts, especially religious) but because of the contents of the indoctrination, which was essentially an apology of homosexuality and radical left-wing political views. According to the critics, both homosexuality and left radicalism were considered so irrational that no one, the judges believed, could embrace them of their own free, conscious will. The critics concluded that in following this line of reasoning the judges ran the risk of judging lifestyles (such as homosexuality) and any ideas that were contrary to prevailing social opinion or even to the court's majority opinion under the pretext of judging methods of indoctrination.
Many are convinced today that it was the "Braibanti case" that brought the Italian Constitutional Court to declare the illegitimacy of the crime of plagio, deleting it from the Italian penal code, but that is not true. The Constitutional Court never reviewed the Braibanti case. It did, however, review the case of Father Emilio Grasso, a Catholic charismatic priest accused of driving a wedge between his young followers and their families and feeding an exasperated cult of his own personality.  In a November 2, 1978 ruling, the Court of Rome Investigating Judge raised the issue of constitutional legitimacy of article 603. On June 8, 1981, Constitutional Court decision No. 96 declared article 603 unconstitutional. The decision included a broad historical review of the matter and essentially accepted the objections that the "total state of subjugation " called for in article 603 could not be achieved with just psychological methods; and in any case, in the alternative, the opinions of psychiatric science were so contrasting as to prevent a judge from reaching unambiguous conclusions. The resulting danger was that such state of ambiguity could lead to decisions based on the degree of popularity or acceptance of the ideas instilled by the alleged plagio. The Court reasoned that in order for the crime of plagio to exist, it ought to have an autonomous psychological existence and yield results "independently of any bodily or physical activities performed on the subjected person," such as torture or the administration of drugs (the latter activities being covered and sanctioned by other laws).
The Constitutional Court discussed the theory of suggestion andin advance of the timesthat of "dependency"; the latter was to resurface during the second wave of "cult" polemics in France and elesewhere. According to the Court's decision, influence and even "psychological subjection " are a "normal" part of relationships between human beings: "typical situations of psychological dependency [...] can reach degrees of intensity even for long periods, such as a love relationship, the relationship between priest and believer, teacher and pupil, physician and patient [...]. But practically speaking it is extremely difficult, if not impossible, to distinguish, in situations such as the instant cases, psychological persuasion from psychological suggestion and to differentiate between them for legal purposes. No firm criteria exist for separating and defining each activity, tracing a precise boundary between the two." The literature on the subject, whether from "psychiatry, psychology or psychoanalysis," does not allow us to differentiate between influence or suggestion that is resistible and that which is not. It follows that an evaluation of the effects of the alleged plagio is usually "symptomatic" and that conclusions depend on "whether the activity performed on the passive subject leads to behavior that either conforms or deviates from ethical models dictated by society or by law."
In other words, we run the risk that among the hundreds of "psychological dependency" situations of everyday lifebetween lover and beloved, teacher and pupil, priest and disciplewe might arbitrarily punish relations that are somehow deemed to be ideologically unacceptable, or simply unpopular. "As a matter of factargued the Constitutional Courtif we wanted to apply article 603, even a normal relationshipwhether it be based on love, religious belief, membership in an ideological movement, or on other motivesthat is supported by a subjects "blind and total" obedience to another subject and is considered to be socially deviant, could be prosecuted as a crime of plagio." In conclusion, this law is ""is a bomb about to explode" in our legal system, since it can be applied to any situation that implies the psychological dependence of a human being on another and since it lacks any firm parameters for ascertaining its degree of intensity." 
Some writings, albeit not of legal experts, maintain that the 1981 Constitutional Court ruling did not assert that plagio does not exist, just like rulings that no longer treat adultery as a crime do not by the same token claim that adultery does not exist. Most of these comments are, at best, well-meaning witticisms of dubious taste. The crime of plagio was deleted from the Italian Criminal Code because the Constitutional Court believed that "its specific traits could not be reliably and rationally specified" and because it was "clearly impossible to find in real life a situation of total subjection" such as the scenario mentioned in article 603. We are not talking here about a different legal definition (as in the case of adultery) of a phenomenon whose empirical reality is a given, but of the "impossibility of finding in real life" cases of plagio. Clearly, no one is going to argue that adultery "cannot be found in real life"!
We must also highlight, and it is important to do so, that the Constitutional Court, while taking into account the surrounding debate, made no specific pronouncement on the Braibanti case. In fact, on December 18, 1981, after the ruling of unconstitutionality, the Court of Cassation (Supreme Court) rejected a motion to review the Braibanti judgment.  Actually, while the Grasso case that prompted the Constitutional Court ruling is typical of the subject matter being reviewed in this book (its not by chance that it took place in a religious context and involved an unspecified number of people who were allegedly subjected to plagio), the Braibanti case is much closer to the plagio scenarios that were discussed under the pre-1930 Italian code: scenarios that involved a physical situation (in addition to the psychological elements) of imprisonment and a situation of actual "slavery" following an individual seduction of a mainly sexual nature. Therefore, a judgment on the Braibanti affair and his "secretaries" does not imply per se a general judgment on plagio and brainwashing issues.
In the course of the "cult" polemics, the reintroduction of laws similar to former article 603 was suggested in Italy as well.  In particular, Professor Michele C. Del Re has repeatedly  called for the adoption of rules to protect "psychological integrity" forbidding, for example, the use of what he called "psychagogic" techniques. In 1992 he persuaded the lawmakers who were drafting a bill for the new penal code to add a new-old offense, " plagio," defined as "the act whereby in order to derive a benefit for himself or for others, someone subjects a person to chemical means, surgical interventions, or psychagogic practices that condition the personality and are apt to compromise psychological integrity." As of today the plagio proposal has not been accepted nor has the draft bill gone forward. Additionally, Del Re's proposal has met with widespread criticism: some critics accept the idea but argue that the proposal is superfluous; others reject the idea for the same reasons that had led the Constitutional Court to rule on the illegitimacy of article 603. In fact, the use of "chemical means" or "surgical interventions" not justified by normal and legal medical practice and the patients consent is patently unlawful, and as such punishable under other laws: introducing a specific rule would be superfluous. As to "psychagogic practices," the term, though rare, does exist: it fuses the words "psychology" and "pedagogy" and refers to psychotherapy techniques that promote personality development. Of course, with this proposal Del Re did not intend to incriminate all "psychagogic" practices, but only those that "condition the personality" such that the individuals "psychological integrity is compromised."
The same problems the Constitutional Court had pointed out in 1981 also apply here. Among them, that tracing a boundary between licit conditioning (a frequent, normal part of everyday life) and unlawful conditioning (that might compromise psychological integrity) was not possible, so that even the new rules (described as "after all is said and done, even vaguer than the former law")  would once more risk arbitrary interpretation. They might also conceal hidden references to constitutionally forbidden judgments about the "quality" of the ideas and proposals into which the individual is allegedly being "conditioned." Of course, we should look at these objections in the broader context of the international debate about brainwashing. For the time being, we can say that the 1981 Italian Constitutional Court ruling had the providential effect, at least until now, of saving Italy from some of the misunderstandings that have plagued other European countries.
See full text of the Italian Constitutional Court 1981 decision in English
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