Johanna Westeson - The ICHRP

also by the fact that almost all countries have abolished criminal law provisions penalizing
consensual same-sex conduct.
The case law of the European Court of Human Rights demonstrates that total bans on
consensual same-sex activities in private violate Article 8 of the Convention. Similarly,
bans on (homo)sexual activities between more than two persons, conducted in private and
with full consent, also infringe upon the right to private life under Article 8 of the persons
involved. The Court has so far not recognized that bans on consensual sado-masochistic
sex may run contrary to privacy rights, as illustrated by its decision in Laskey et al. Here,
the Court limited the notion of privacy even in the presence of consent of individuals to
sexual practices that were clearly harmless, for the reason that sado-masochistic practices
could result in some kind of ‘vulnus,’ or wound, to the physical body. This outcome is
unfortunate from a sexual rights point of view. The Court’s statement about “the potential
for harm inherent in the acts in question” indicates a failure to understand the nature of
S/M practices. Similarly, the Court’s declaration about the limited reach of Article 8 in
asylum procedures, in F. v. United Kingdom, raises concerns as it suggests a view on
sexual identity as less crucial to individual dignity and personhood than other personal
characteristics.
The former Soviet Republics are among the countries in the region that last decriminalized
consensual same-sex behavior, with a couple of notable exceptions where male
homosexual sex is still a criminal offense. With some variations, penal codes of former
Soviet Republics are all based on the old Soviet or the more recent Russian criminal law. It
is noteworthy that Russia and Kyrgyzstan, while having decriminalized consensual samesex
conduct for both men and women, still use special terms for sexual crimes where the
perpetrator is of the same sex as the victim, instead of employing a gender-neutral
language on rape and other sexual crimes. This is problematic. Separating sexual crime in
these two groups – same-sex and opposite-sex – reinforces the idea that same-sex and
opposite-sex sexual crimes are essentially different, and also involves the risk of further
stigmatizing same-sex activities. A neutral system would criminalize sexual acts performed
without consent without drawing any distinction based on the gender(s) of perpetrator and
victim.
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