Johanna Westeson - The ICHRP

2A. PENALIZATION OF SAME-SEX CONDUCT AND OTHER NON-
CONFORMING SEXUAL PRACTICES
1. Introduction
The European region has taken a lead in decriminalizing same-sex conducts between
consenting adults in private. The European human rights system was the first in the world
to apply human rights parameters on penalization of same-sex behavior, in Dudgeon v.
United Kingdom, as early as 1981 (see below). The privacy argument, used by the Court,
has since been employed both by international jurisprudence and by domestic courts. The
leading case internationally to apply privacy and non-discrimination rights to issues of
consensual same sex, Toonen v. Australia, 179 was decided thirteen years after Dudgeon, in
1994.
On the other hand, there have been cases that illustrate a limit to the European Court of
Human Rights’ willingness to recognize the rights under Article 8 for persons who either
engage in non-conforming (but fully consensual) sexual practices or identify as
homosexuals. As will be discussed below, these cases can be criticized from a sexual selfdetermination
point of view, and raise questions about whether the Court is fully ready to
embrace a view on sexual privacy as a value as fundamental as other aspects of human
privacy and dignity.
On the domestic level, many European states have a long tradition of respecting privacy
rights, flowing from the strong influence of Enlightenment theories and, from a legal
viewpoint, Napoleonic laws. Decriminalization of same-sex conduct has followed as a
consequence of these, and by the end of the nineteenth century France, Italy, Spain,
Portugal, Belgium, and the Netherlands had all decriminalized same-sex sexual conducts
among consenting adults. More recently, the rulings of the European Court of Human
Rights have had great influence over domestic legislatures; almost without exception,
countries that have been found to be in violation of privacy rights for criminalizing nonconforming
sexual behavior have reformed their laws accordingly. EU policies have also
had strong influence, in particular over candidate member states.
A few countries in the region, all of them former Soviet republics, still penalize consensual
same-sex behavior.
2. Council of Europe
Jurisprudence of the European Court of Human Rights
i. Penalization of same-sex practices in private between two persons
In Dudgeon v. the United Kingdom 180 the applicant was a homosexual man living in
Northern Ireland. According to Northern Irish criminal law, ‘buggery’ (anal intercourse)
and ‘gross indecency’ between males (e.g. mutual masturbation, oral-genital contact) were
punishable with various degrees of imprisonment, regardless of whether they took place in
public or in private, whatever the age or relationship of the participants involved, and
179 UN Human Rights Committee, CCPR/C/50/D/488/1992, views adopted on 31 March 1994. See for more
information the International section.
180 Application no. 7525/76, decided on 22 October 1981.
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