Tarlton Law Library
Jamail Center for Legal Research

     "Solamente una vez ame en la vida . . . Una vez, nada mas, se entrega el alma." "Only once in my life did I fall in love," begins a Latin American song popular in this country many years ago. "Only once does one give up one's soul." The loss of a soul to one's lover may be romantic hyperbole south of the border, but in Italy it might well cost the lover a considerable term in prison. This at least is one possible reading of the strange case of Aldo Braibanti, a case that, with more justification than usual, has been stamped by journalist observers as the "trial of the century."
     Aldo Braibanti was sentenced in July 1968 by the Court of Assize of Rome to nine years of imprisonment "because with physical and psychological means, in execution of the same criminal purpose, at different times he brought Pier Carlo Toscani and Giovanni Sanfratello under his own power, in such a way as to reduce them to a total state of subjection."
     This charge followed verbatim the language of an obscure provision of the Italian penal code, which defines an offense called plagio. The English equivalent of the word plagio is plagiarism, and since reduction of fellow men to a state of subjection seems far removed from English notions of the limits of plagiarism, a word of explanation is necessary. There are three kinds of plagiarism under Italian law: literary plagiarism; political plagiarism, which is the impressing of a citizen of one country into the service of another; and the so-called civil plagio involved in the Braibanti case. In order to detect the common thread that runs through these apparently disparate crimes, recourse must be made to the Latin forebear of plagio, the post-Augustan word plagium, which denotes the crime of kidnapping or man-stealing. With assistance from this root meaning, we can see that all varieties of the crime of plagio involve the stealing of a human being, of his personality or of the product of his personality. Having regard for the youth of Braibanti's accusers, we can with accuracy translate the offense of which he was convicted as "psychological kidnapping."
     The substance of the charge against Braibanti was that he had successively induced two young men, an eighteen-year-old apprentice electrician, Pier Carlo Toscani, and Giovanni Sanfratello, a student in his early twenties, to break their ties with families and friends and to live with him in a homosexual liaison. Although the relationships of Braibanti with the young men were separate and existed at different 

times, the two charges were joined, since it was alleged that his conduct with each was analogous and showed the same criminal design.
     Of what did this design consist? Braibanti was claimed to have seduced the youths away from their families and their middle-class values by flattery and overrating of their limited intellectual capacities; by exalting his own genius and convincing them of their good fortune to be selected as disciples; by preaching doctrines of unlimited individual and sexual freedom and hostility to the institutionalized restraints provided by church, state and family. Once he had the youths living with him, he was said in each case to have been extremely dominant and possessive. He at times attempted to conceal their whereabouts from their families. He discouraged their contacts with outsiders and was reluctant to let them out of his sight. It was said that he invaded their intellectual privacy by requiring them to submit their dreams for his amateur psychoanalytic examination, and that he went into rages when their dreams or thoughts turned to girls or to family memories.
     There was evidence that the youths were also deprived of the most basic physical privacies, including choice of attire and sleeping habits. He was said to have kept both youths for long periods in a room from which the sunlight was excluded, and in the case of Sanfratello, witnesses testified that they had seen Braibanti lock the youth in a room when he went out alone. He allegedly directed their reading and did not permit them to see newspapers or movies for fear that they would be unduly impressed by pictures of girls. Braibanti's hold over Toscani was said to have been reinforced by "magic rites," including oaths of fidelity sealed in blood and confirmed at the grave of Toscani's father.
     The alleged perpetrator of this criminal design is an interesting, although apparently minor, figure on the postwar cultural and intellectual scene in Italy. The son of a doctor, Braibanti was found by the trial court to have had a difficult childhood "illuminated solely by a great love for his mother." He early showed a studious bent and interest in many fields, including the philosophy of Spinoza. During World War II Braibanti became a Marxist and entered the Resistance, fighting with the partisans. He was arrested and tortured by the Nazis. After the war he briefly took part in Communist political activity but soon withdrew, because, according to the court, "his ideas evolved towards a so-called Marcusian Marxism which is, to a certain degree, a libertarian and individualistic tendency toward anarchy."
     After leaving the political scene, Braibanti turned to a great variety of cultural activities that appear to have won for him only modest recognition until the personal notoriety involved in his trial created special interest in his intellectual make-up. His activities included ceramics, the study of ants and the writing of poems, essays and dramatic 

works. A selection of his works was published after his trial under the title The Prisons of State. In these works Braibanti argues against egotism and anthropocentricity. He sees the individual united, through a rather abstract concept of love, with other individuals as embodiments of the universe, and he has a vision of man, unseated as ruler of nature, compelled to recognize his kinship with equally distant realms of microbiology and outer space. He consistently attacks the forces he sees as formalistic restraints against union with the life force and nature -- the institutions of family and society, the dualism of sexual morality and the rigidity of logic and language. All the obstacles in the way of a commitment to life and a conviction of the meaningfulness of human action he grouped together as epiphanies of the fundamental anti-life principle, which he defined, in his thesis for his doctorate in philosophy, as the "grotesque."
     The two young men in the case were of quite distinct personalities and backgrounds, and their relations with Braibanti followed significantly different courses. Toscani was an orphan of a factory worker and had limited education. The court concluded that he was stupefied by Braibanti's show of knowledge and that he was thrown into confusion by the conflict between Braibanti's philosophy (which he only dimly understood) and the traditional beliefs of his family. Moreover, his sexual relations with Braibanti seem to have lasted only a few months. During that period, although he was for a while working with Braibanti and spent some nights in his company, he apparently was living at home with his brother, with whom he regularly had dinner. Except on the occasion of short trips with Braibanti, he was at all times in the same city where his family lived. The court was convinced that Toscani showed no neurotic tendencies and would not permit his examination by psychiatric experts. In any event, he had sufficient strength of character to break off his relationship with Braibanti, through one of the strangest psychic agencies since Svengali's portrait taught Trilby to sing again. As the court put it poetically, Toscani's subjection continued until "under the religious influence of the sound, unexpectedly heard, of sacred bronzes [church bells] he found for a moment the strength to run to his brother's home, in the middle of the night, and to shout to him Help me, I can't go on!'"
     The case against Braibanti appears mainly to have been based on his relationship with the other youth, Sanfratello, and indeed the Toscani charge served the principal function of trying to show a general "design" of criminal conduct. Sanfratello was a little older than Toscani, was better educated and still a student, and his parents were alive. Signs of unhappiness and conflict with his family clearly appeared before his liaison with Braibanti, and the court's attempt to attribute them 

to the early stages of his acquaintance with Braibanti seems strained. Sanfratello showed a persistent tendency to take flight. In January 1960, before his affair with Braibanti, he told his family suddenly that he wanted to give up his studies, and they agreed to send him for a time to stay with a missionary priest in Paris. However, after he arrived in Paris he left the priest and went into hiding. He refused to return to his family until October, when he reappeared at home "tattered and hungry." In August 1962, after living with Braibanti in Florence for half a year, Sanfratello took flight once more. He was found by his family in Venice a month afterward, again, in the court's words, "tattered and hungry." Sanfratello later returned to Braibanti, until October 1964, when his family burst into the apartment and led him home -- over Braibanti's lively objections. The evidence was that Sanfratello agreed to go with his family, while Braibanti shouted for the police, dashing to the window either to summon aid or to threaten suicide. After his return to his family, Giovanni received care in two psychiatric institutions and after his release received psychoanalytic therapy. It is reported that during his stay with Braibanti his weight dropped from 160 to 95 pounds.
     Ironically, although it was the prosecution's case that Sanfratello, whose relationship with Braibanti was much longer than Toscani's, had suffered more from Braibanti's dominion, Sanfratello apparently declined to be named as a formal party in the case, and his father was held entitled to become a party in his stead. Sanfratello showed concern in his testimony that he might be causing harm to his former friend.
     The first legal problem with which the trial court's opinion dealt was whether the crime of civil plagio could be defined with sufficient concreteness to identify conduct falling under the statutory ban. Acknowledging that there was little guidance provided by prior case law, the court turned to legislative history. The crime of civil plagio was originally provided for in the Penal Code of 1889 in language identical to that used by Article 600 of the present code for the crime of "reduction to slavery." The statutory section provided for imprisonment of "anyone who reduces another person to slavery or another analogous condition." While the code of 1889 was in effect, doubt was expressed as to whether the crime of civil plagio applied only to de jure slavery imposed by Italian citizens on others in foreign countries recognizing slavery as a legal institution, or whether it could apply also to de facto relations of servitude. It was to eliminate this uncertainty that in the 1930 revision of the code the original provision was split, with de jure situations being covered by the present Article 600, dealing with reduction to slavery, and Article 603, providing for civil plagio.

     Despite this history, the court concluded that civil plagio does not merely cover cases of slavery imposed without juridical blessing under local law, but is intended to afford broad protection of the freedom of the individual personality from external interference. In the court's view the crime of plagio did not require physical mastery over the person, but also applied to psychological dominion, which may eventually be accompanied, but not necessarily, by material control. As a result of psychological domination by the perpetrator of plagio, the legal status of the victim as a free man is unaltered, but his "individual freedom," as a concrete factual entity, is suppressed. The court, stressing the fundamental, inalienable quality of human freedom in the social contract and in the constitutional setting of a republic, drew two additional threshold conclusions about the crime: (1) the victim of a crime that offends individual personality can be any person, regardless of his particular social, personal, material or psychological condition; and (2) the consent of the offended person does not justify the crime or exempt the defendant from punishment.
   Not only does the consent of the victim not distinguish legal conduct from plagio, but, according to the court, the offense may be committed despite the absence of a specific intent to place the victim under one's power "for the purpose" of reducing him to a total state of subjection. General intent was held sufficient. That is, the prosecution need show only that the defendant consciously and willfully exercised over the victim dominion of such a nature as to reduce him to total subjection.
     Although the court's consideration of the legal concept of plagio established as a starting point the view that the statutory section was directly concerned with the integrity of the personality, it still faced its principal task of defining the "total state of subjection" of the personality, which was the key element in consummation of the offense. It is at this point that the impression grows that the court, for all its good intentions and scholarship (the opinion runs to 180 pages), begins to lose its moorings. It announced that the statutory prohibition is justified by modern principles of dynamic psychology, which stress the key role of freedom of study, criticism and self-determination in integrating external influences into the developing personality. In the court's view, the ban against plagio was quite appropriately directed against suppression and distortion of the powers of judgment that are central in the development and maintenance of personality.
     In considering how the purposive and critical faculties may be injured by external interference, the court ranged widely over the history of psychology and psychiatry. In addition to references to dynamic psychology, it traced the development of doctrines of suggestion from Charcot and the Nancy School. It referred also to studies relating 

homosexuality to psychological factors, and particularly to the findings of Ferenczi that homosexual tendencies may induce psychological states similar to obsessive or compulsive neuroses and may increase the suggestibility of the subject.
     We can gather from the court's analysis of the scientific setting of plagio that the crime consists of the taking of action of such a nature as to impair the workings of the self-determining elements of personality and that this action may be taken through the agency of "suggestion." This is far from a satisfactory definition of criminal conduct, and a thorough search of the byways of the opinion does not add much clarity to the contour of the statutory prohibition.
     The question of the psychological state of young Sanfratello, and its origin, was put to three psychiatric experts, who had examined him. Although the terms of the submission appear to be grammatically sound, one wonders what sense, if any, was conveyed to a medical mind. The question put was:

Whether from the conduct of the accused, as it appears in the record, and also having in mind the documentary exhibits and the literary production of Braibanti to the extent it is suitable to technical evaluation of its psychological sphere, there can be derived a total state of subjection or of suggestion or of both, or any state of incapacity in Giovanni Sanfratello, stating, in the event Sanfratello is presently affected by psychological illness, the nature, origin, and course of such illness and if it can have been caused in whole or in part or accelerated in its course by the conduct of the accused or whether the same illness can have constituted a ground facilitating the action eventually directed towards placing the subject in a state of subjection or suggestion or of any other conditioning.

From the conduct of the accused, as it appears from the record (with particular reference to the statements of Toscani) and from the description of the facts during [Sanfratello's] examination by the medical experts, it is to be concluded that a total state of subjection (to the causation of which suggestive mechanisms have contributed) has been created in Giovanni Sanfratello so as to bring him into the power of Aldo Braibanti. [Emphasis added.]

of suggestion, the total state of subjection required by the statute had been induced. Not only is the response in even more "hanging" terms than the question, but the experts' words indicate that they may have wandered far afield. Although they rejected the invitation to consider the "suggestive" power of Braibanti's writing, it is surprising that they found Toscani's feelings about Braibanti to have substantial impact on their psychiatric examination of Sanfratello.
     The disquieting impact of this expert testimony is increased when it is observed that the court refused to permit the psychological state of the other young man, Toscani, to be passed on by the experts, on the ground that his mental health was beyond question. Not only may this omission have deprived the defense of an important line of inquiry, but the court appears to have filled the void in medical evidence by assuming the existence of a state of subjection in Toscani merely because of the similarity of some of the circumstances of the liaisons of the two youths with Braibanti. The significant differences between the two relationships, including the greater isolation of Sanfratello from his family and the longer duration of his cohabitation with Braibanti, are ignored by the court. The arguments of the defense for psychological evidence with respect to Braibanti's personality were rejected by the court on the ground that the governing statutes do not permit expert testimony as to the personality of the accused when his sanity is not in issue. This determination, however, did not bar the court from its own speculations on Braibanti's motivational drives, including a key determination that he had a strong need to dominate which, after frustration in the political arena, led him to desire mastery of other individuals in private life. Caesar, according to the court, had become Don Giovanni.
     It seems clear that "suggestion" is the main psychological mechanism the court saw at work in Braibanti's relations with the young men. The opinion appears to attempt to reinforce its weak definition of the statutory "state of subjection" by analogies to various states in which suggestion has been thought to have had a role, notably hypnosis and brainwashing. If the factual conclusions about Braibanti's treatment of the youths are to be believed, certain elements associated with hypnosis, brainwashing or other states of suggestion can be identified to a certain degree: isolation, control of physical movements, invasion of privacy, deprivation of outside stimuli and third-party relationships, unfreezing of old beliefs and indoctrination in new ideas, and the establishment of dominance over the victim. It would be proper to raise a question whether similarities to these other relationships ever could provide a safe anchor for legal definition of a crime in view of the wide divergence of scientific opinion as to the mechanisms that characterize the hypnotic state or permit coercive persuasion. But, more fundamentally, it is to be 

doubted that the circumstances of personal one-to-one relationships involved in the Braibanti case, however stifling or degrading, bear sufficient resemblance to the controlled environment necessary for hypnosis or brainwashing to make comparison bear close analysis. Much of the evidence in the case suggests that witnesses as well as court had hypnosis on their minds: there is, for example, the breaking of Braibanti's spell over Toscani by the ringing of the church bells; the witnesses' testimony that Sanfratello always walked behind Braibanti, with his eyes fixed on the ground; and Sanfratello's terrified departure from a meeting with his parents after the one hour claimed to have been allotted by Braibanti was up. However, the notion of hypnotic states lasting for months (or years, in the case of Sanfratello), and being equally effective whether the subject was in seclusion with the hypnotist or abroad in society, has a stronger affinity to the fiction of hypnosis than to the clinical or experimental literature.
     Analogies to brainwashing seem no more helpful. It is fanciful to compare the complete physical control over the object of persuasion that exists in a prison camp setting with a relationship, however destructive, between members of an urban household. In the latter case some restraint on extreme conduct is imposed by prying neighbors if not by the possible intervention of friends or relatives. To compare imprisonment with the case of Toscani, who was living at home during his "brainwashing," requires a real leap of the imagination. Moreover, there is considerable support for the view that successful brainwashing may depend less on physiopsychological stress than on peer group pressures from other "reformed" prisoners, a social factor that would have been lacking in the Braibanti case if the evidence of the victims' isolation, which impressed the court so strongly, is accepted at face value. Moreover, it has been pointed out that if the pejorative label "brainwashing" is applied to actions outside the sphere of coercive political indoctrination of actual captives, embarrassing similarities can be found with techniques of persuasion that are used in institutional or professional settings and that are socially approved. These similarities appear not only in situations involving imprisonment, such as the rehabilitation of criminals in our penal institutions, but also in settings where the actual power over the object of persuasion is social or psychological, such as in religious seminaries and psychological therapy.
     Even less can be said for the court's allusion to the contemporary dangers from the "hidden persuaders" of advertising and other sectors of industrial society. Ironically, Braibanti himself attacked the "hidden persuaders" in his writings as "in their turn conditioned by their own . . . ignorance."

     Having attempted to provide some basis for a decision as to what constitutes the total state of subjection required for plagio, the court also decided what plagio is not -- it is not the same as love. In this conclusion, too, the court turned to psychology as its ally. It stated that "suggestive states" cannot be equated with "sentimental situations, in which the ego-identification and the object remain distinct; love can produce identification between the object and the ego-ideal, according to Freud's conception, the super-ego, but the latter always remains separate, distinct from the ego."
     Despite this flight into theory, the court can hardly have avoided the observation that much of the factual evidence of illegal domination in the Braibanti case is often associated with many instances of love and marriage -- alienation from family, dominance by one partner, possessiveness, and unfreezing and changes of ideology and religious belief. On the latter point, one wonders whether the judges and jurors, if there were operagoers among them, can have forgotten Baron Scarpia's cry during the Te Deum at the end of the first act of Tosca: "Tosca, you have made me forget God!"
     The court also says that lovers want to make their loved ones happy, whereas Braibanti, through his will to dominate, forced his victims to live in misery. This is quite an optimistic view of marriage, particularly in a society that until recently did not recognize divorce. It is interesting to note that a witness, who observed how submissive Sanfratello was in Braibanti's presence, added that "they were just like husband and wife."
     Having dealt with the unlawful object of plagio, the subjection of the free personality of another, the court considered in detail the means it found Braibanti had utilized to achieve the illegal end. None of the means were illegal in themselves.
     The homosexual relations of Braibanti with the young men were not unlawful. Nor did his relations with them constitute statutory rape, since they were over the age of consent and neither of them was found to be in a mental condition that would negate their consent. Although there was evidence of Sanfratello having on occasion been locked in his room when Braibanti was going out alone, the prosecution apparently was not sufficiently sure of its ground to assert that an independent crime in the nature of false imprisonment had thereby been committed. Furthermore, no similar evidence existed in the case of Toscani. Ultimately, Braibanti's counsel was to argue on appeal that if any offense was to be charged, it should have been the charge of "private violence" under Article 610 of the Penal Code, which provides a maximum of four years imprisonment as compared with a minimum of five and a maximum of fifteen in the case of plagio. Private violence has been 

committed when one "with violence or threat, forces others to do, suffer or not to do any thing."
     Of greater significance is the court's assertion of the right to consider Braibanti's inculcation of his anti-establishment and sexual views as a means of alienating the youths from their families and bringing them under his power. (We have already noted the unsuccessful attempt to have the medical experts undertake a similar analysis.) The court states rather defensively that in examining Braibanti's ideas as a means to an illegal purpose, rather than as criminal in themselves, it is escaping the injustice history has found in the trial of Socrates. Nevertheless, judicial criticism of literature is a dangerous bypath in a proceeding in which the life or liberty of author or reader is at stake. Signs of ideological and literary bias and predilection are scattered through the opinion. Braibanti's work is criticized as derivative; an early work reminds the court of Baudelaire. (The work reminds me of Moravia and Camus.) There is a surprising assault on Braibanti's early favorite philosopher, Spinoza, as a social pariah and a preacher of fatalism and resignation. The court also takes keen delight in turning against Braibanti the words of Herbert Marcuse, one of the "philosophers praised by Braibanti." It observes that Braibanti had been guilty of "repression," which Marcuse regards as society's prime ill. Despite all these comments, the court claims ideological impartiality, but its feelings are revealed when it denies that it is condemning the defendant because of his "profound amorality."
     Distinctions between ends and means have been mischievous when made either by enemies of law or by its defenders. Many of those who see error in the present institutions of society would justify violence, rioting or murder in the name of what they regard as socially desirable directions of change. Conversely, the common law and its administrators appear to have served better when the legal character of an act does not change depending on whether the purpose for which it was committed is socially approved. We have been left, in the difficult cases involving advocacy of war resistance and other controversial causes, with the unhappy legacy of common-law conspiracy, which finds a crime when overt acts, legal in themselves, are committed pursuant to a prohibited design.
     It is recognized that personal relationships such as those involved in the Braibanti case can be destructive. Unfortunately, the same may be said of many marriages and of many parent-child relationships. We have seen in recent years a good deal of social harm arising out of larger and less traditionally structured groups, from the street gang to the drug-oriented commune or ritualistic cult. Yet despite these dangers, the Braibanti case and the uncertainties in the processes of decision that a 

study of the trial court opinion reveals do nothing but reinforce the notion that the law is more at home with regulating overt acts than purposes or states of mind. It seems possible that Braibanti might not have been convicted if he had been tried under more traditional statutes dealing with overt acts, such as the provision for "private violence." Perhaps trial under these more traditional provisions, even at the high risk of acquittal, would have been better administration of justice. The satisfaction the victims or their families may have derived from the court's finding Braibanti guilty of plagio does not, to my mind, justify the jurisprudential harm done by the court in breathing life into this vague criminal ban.
     On July 14, 1968, the trial court, composed of six jurors (four men and two women) and two judges (Judge Dr. Giuseppe Volpari and Presiding Judge Dr. Orlando Falco), found Braibanti guilty on both counts of plagio and sentenced him to a term of nine years imprisonment, of which two years were condoned. In determining to set the base penalty at twelve years (prior to various reductions and a one-year statutory augmentation), the court noted that it

could not help but consider the gravity of the crime flowing from the very nature of [the defendant's] conduct consisting of a plan coldly prearranged to result in the annulment of the freedom of will of others, a plan pursued with such suggestive means as would not be noticed by the victims and then working with craft and masking with friendship and affection calculated and hidden hostile conduct.

     Assuming that these arguments may have missed the mark, why then the reduction of the base penalty? It appears from one newspaper account that in the end Braibanti, like the young Toscani, was saved by the bell. The appeal court agreed that Braibanti had committed plagio in the case of Sanfratello, but impressed by Toscani's ability to free himself from Braibanti's clutches when the carillon pealed out, concluded that in his case the total state of subjection had not been consummated and Braibanti was guilty only of attempted plagio.

     In 1971, Braibanti's conviction was affirmed by the Italian Supreme Court (the Supreme Court of Cassation). I was later informed by Italian friends that another defendant has been convicted of plagio, this time in the Naples area. On April 9, 1981, the Constitutional Court of Italy declared Article 603's proscription of plagio to be unconstitutional.

* This article was previously published in 57 ABAJ 990-995 (October 1971) and in Innocence and Arsenic, pp. 116-131.