The bioethics of “malice” and the concept of imputability in the criminal trial, in the light of the Orlando reform and the contribution of neuroscience to the forensic psychopathology
Authors: Oranges Celeste 
Published: November 2018

Malice, crime and madness have in themselves an intrinsically fascinating nature, which has led scholars of all kinds to question on their relationship, on their genesis, but also on their same semantic meaning. For some time, the legal professions are discussing on the original or derived essence of the wickedness and its incidence of the same mental health of the “bad” individual, without leading to certain answers. After all, a rigid and univocal solution of complex problems can lead to erroneous and dangerous conclusions since the human behavior does not lend to simplistic explanations. Our inborn inclination in the need to achieve clarifying answers and that will undermine our need to distinguish the world in good and bad, right and wrong, healthy or crazy, bad or good, leads to the creation of watertight concepts, meaningless of real results. Paradoxically we more persist in the search for clear and define solutions the more we move away from the reality of the facts. This being the case does not involve the renunciation of investigating the mechanisms that regulate the human behavior, but sets the basis to make a realistic investigation. The human act is not determined by a single factor, whether biological, psychological or environmental, but from multiple reasons and also from an intangible component of randomness. So, also the action of the villain or the criminal cannot be explained through a blind causal determinism, but through the use of medicines, of the psychology, of the anthropology and all others sciences useful to provide additional factors to our research. However, the neuroscientific approaches are interesting, which have shown that there is a real correlation between special genes (which for example, the MAOA, Monoamine Oxidase A) or between the brain loops linked to the emphatic answer (such as the anterior cingulate cortex, the insula and the amygdala) and the attitude to crime, understood as greater violent acts by the subject examined. These objectives reached in the science must be remain unenforceable and can certainly provide a valuable contribution even to decide in the judicial matters, in order to equip the Court of more elements to decide of the guilt and of the imputability of the subject accused of a crime. Special attention must be given to the science that it is not allowed to be a guru that uncritically analyses the bases of the free will, while excluding the others probative results on which the Court must expressed his conviction, for the purpose of the judgement. In this context we place also the perennial dilemma of the vices of the human mind and the imputability. Indeed, the concept of “mental infirmity” gets a different meaning depending on whether we are considering the same medical or legal point of view. Unique is the interpretative evolution about the concept of the mental infirmity suffered by the legal point of view, rapidly widening gap compared with the clinic concept of the mental pathology and opening doors also to so called “personality disorders”. An essential contribution to the problem arising from the Law of 23rd June 2017, n. 103, as called Orlando Reform, which introduced some amendments to the Criminal Code, to the Criminal Procedure Code and to Penitentiary system. Among the points of the Reform, of peculiar interest it’s the choice of the legislator to fill a gap in the system in terms of imputability and mental infirmity, addressing personality disorders and finally affixing the seal of legality to the doctrinal and jurisprudential theses on the subject. These theoretical principles have provided into action in the analysis of certain cases concerning blood offences, after having given a starting point on concept of free will, of mental infirmity, of determinism behavior, and on the relationship between science and Law, in a helpful interest.