2. Obstruction of Religious Services

"Whosoever impedes or disturbs the performance of any function, ceremony or religious service of the Roman Catholic Apostolic Religion or of any other religion tolerated by law, which is carried, out with the assistance of a minister of religion or in any place of worship or in any other public place or place open to the public shall, on conviction, be liable to imprisonment for a term not exceeding "one year" (Section 163 (l)).

The punishment is imprisonment from six months to two years if the crime is aggravated by any act amounting to threat or violence against the person.

It must, in the first place, be observed that the distinction between the Catholic Religion and tolerated religions made, for purposes of punishment, in respect of the previous crime of vilification of religion, is not repeated in respect of this crime. On this point our legislator has not followed the Italian model, though otherwise our provision is substantially identical with article 405 of the Italian Code. The reason seems clear. Here it is no longer a question of protecting Religion as a faith and consequently of affording more energetic protection to the Religion of the country which gives life and character to the religious sentiment of the people, but of preventing direct and forcible interference with the right of worship of any person or group, which may also lead to serious breaches of the public peace.

The crime is committed when the performance of the external practice of worship is prevented or hindered from beginning or is interfered with or disturbed in the course of it, as well as when, on account of the fact, the said performance proceeds irregularly. It was held by the Italian Court of Cassation that a disturbance of short duration is sufficient to constitute the crime and even though it has not caused grave commotion or disorder (Riv. pen., II, 599).

The crime is wilful (doloso) inasmuch as the fact must be voluntary: but it is not necessary to prove a specific intent to vilify religion, "perchè l’offesa alla religione inest

rei ipsae, e chi impedisce o turba intenzionalmente funzioni, cerimonie o pratiche religiose non può ignorare di offendere, in tal modo, la religione"236 .

By the express terms of the text, the function, ceremony or service impeded or disturbed must be performed either:

(1) with the assistance of a minister of religion in a place of worship; or

(2) in a place of worship; or

(3) in a public place or in place open to the public

In the first hypothesis, the act is punishable even though it is committed in a private place in regard to functions, ceremonies or services to which intervenes, necessarily or facultatively, a minister of religion, as, e.g., the confession of a sick person, the administration of extreme unction, the blessing of a house, etc. The law requires "the assistance" of a minister of religion and nothing more: so, such assistance may consist in an active participation in the act of worship as well as in mere passive presence, provided the minister of religion intervenes in such capacity and not simply as one of the faithful or spectator. As was explained in the Ministerial Report on the Italian Code (on which, as already mentioned, our provision was modelled), the word "with the assistance" was adopted because that word "mentre esprime il concetto che non basta la semplice presenza del ministro del culto come credente o spettatore, denota così la vera e propria partecipazione attiva, come la semplice direzione, sorveglianza, ecc., esplicate nell'esercizio della qualità di ministro del culto" (II, p. 196).

When the criminal act is committed, wholly or in part, "in a place of worship", i.e., in any place, though private, destined, whether permanently or temporarily, to worship, it constitutes the material element of this crime, notwithstanding that the function, ceremony or service is not performed with the assistance of a minister of religion.

Again, in the third hypothesis, i.e., when the act of the offender is committed in a public place or in a place open to the public, the assistance to the function, ceremony or service of a minister of religion is not necessary. The condition relating to the public place or place open to the public subsists independently of the character and

236 Manzini, op. cit., Vol VI, p. 54, § 1854. Vide also Ann. di dir. e proc. pen., 904; Giust. pen. 1940, II, 174