Unequal treatment of homosexual and heterosexual relations in terms of their criminalisation
Sexual abuse of minors
RULING Nº 247/05
10 of May of 2005
Sex crimes are regarded as crimes against persons, i.e. against the strictly personal value of freedom of sexual choice. They are no longer viewed as crimes against the values, interests or ethical and social principles of community life. A distinction is also made between offences against sexual freedom and infringements of the right to sexual self-determination - a distinction that is aimed specifically at allowing protection to be extended because of the victim's age where the victim is a child or, in any case, a minor who has reached a certain age. The legal interest protected is also that of sexual freedom and self-determination; it is associated in particular with the legal right of minors to the free development of their sexual identities, which is offset against the varying degrees of development of their personalities. This counterbalancing process is reflected in the differing levels of protection of minors' sexual freedom and self-determination according to their age, i.e. 14 or under, 14 to 16 or 14 to 18.
A comparison of Articles 174 and 175 of the Criminal Code shows that both provisions were introduced to protect the legal right to sexual self-determination for minors aged 14 to 16 through the punishment of serious sexual acts likely to affect the free development of their sexual identity. The offences created thereby are an exception to the principle that the carrying out of sexual acts will only damage the overall sexual development of children under 14 and that once minors have reached the age of 14, they are free to choose their sexual relations. While from the victim's viewpoint, it is the right to self-determination which justifies these provisions, from the perpetrator's viewpoint, it is the (conflicting) right to the free expression of his or her sexuality, which is restricted in the name of respect for the rights of minors aged 14 to 16.
The rights to personal identity and to the development of one's personality (Article 26.1 of the Constitution) required by respect for human dignity (Article 1 of the Constitution) are reflected by the right of citizens to self-fulfilment as individuals, which includes the right to sexual self-determination, particularly in the form of the right to a sex life according to the choice of each of those enjoying these rights. With regard to these rights, the Constitution expressly guarantees the right to "legal protection against any form of discrimination". This means that these rights cannot be restricted in different ways according to the different factors which make up their content - in this case the sexual orientation of the person enjoying these rights.
Since Article 175 of the Criminal Code attaches no significance to the abuse of the victim's inexperience - unlike Article 174 - it introduces a difference in legal treatment based on sexual orientation (homosexual) and with no other rational grounds, thereby undermining the protection afforded by the principle of equality enshrined in Article 13.2 of the Constitution.
The issue at stake was the constitutionality of Article 175 of the Criminal Code, under which a citizen had been convicted of two offences of homosexual acts with adolescents and sentenced to two years and six months' imprisonment.
Reference was made to the principle of equality because of an alleged difference in the treatment of homosexual and heterosexual relations. However, the question which the Constitutional Court was required to decide was only whether Article 175 violated Article 13 of the Constitution (principle of equality) and Article 26.1 of the Constitution (other personal rights) in so far as it punished the conduct which it covered (homosexual relations) even where no advantage had been taken of the minor's inexperience, whereas Article 174 of the Code punished the conduct which it covered (heterosexual relations) only where advantage had been taken of the minor's inexperience.
The fact that it had been made a criminal offence for an adult to engage in serious homosexual acts with a minor of 14 to 16 years of age or to prompt a minor to commit such acts with another person showed that these laws had been drafted on the assumption that, even where no advantage was being taken of the minor's inexperience, carrying out such acts could interfere with the free development of his or her personality, particularly one of its key features, namely sexual orientation. This meant that the harmonious sexual development of minors had to be secured, particularly where adults were engaging in serious homosexual acts with minors who had reached a certain age, given that experiences of this kind could cause trauma and serious damage to a young person's psychological, intellectual and social development. What was at stake was the protection of legal interests falling within the ambit of the Constitution, i.e. sexual self-determination and, in more general terms, the free development of personality.
Abuse of the minor's inexperience, which was referred to in Article 174 but not in Article 175 of the Criminal Code, meant exploiting (or taking advantage of) the victim's lack of sexual experience and hence relying on less resistance on the victim's part to the serious sexual acts described in the article, causing damage to the adolescent's free sexual development, particularly his or her sexual orientation. Consequently, when the legislation was drafted it had been accepted that circumstances could vary and either that the minor aged 14 to 16 was already sexually active or that he or she had no sexual experience but no advantage had been taken of his or her inexperience. In such cases no threat was posed to the free development of the minor's sexual identity and this had been the justification for pinpointing the typical feature of taking advantage of the minor's inexperience.
The law had been based on the presupposition that homosexual acts between adults and 14 to 16 year-old minors interfered with the free development of the minor's personality, based on the understanding that in this type of offence, it was only the homosexual nature of the acts which was of any significance. However, the parameters of normality and abnormality could not be used, under Articles 13.2 and 26.1 of the Constitution, to justify any difference in legal treatment. It was precisely when dealing with situations which were associated with minority categories or sociologically disadvantaged sectors of the population that the constitutional principle of equality really came into its own, permanently or partly guaranteeing different people's rights and their right to be different.
In conclusion, the Court found that the provision of Article 175 of the Criminal Code under which homosexual acts committed with adolescents were punished even where the perpetrator had not taken advantage of the victim's inexperience was unconstitutional because it violated Articles 13.2 and 26.1 of the Constitution.
The judgment refers, inter alia, to the repeal, on 31 May 1994, of § 175 (Homosexuelle Handlungen) and the amendment to § 182 of the German Criminal Code and the repeal, on 14 August 2002, of § 209 of the Austrian Criminal Code, which punished homosexual acts between men of 19 years of age and over and consenting adolescents aged 14 to 18, followed by the introduction of the current § 207b, including provisions which make no distinction between heterosexual, homosexual or lesbian acts.
It also refers to the case-law of the Commission and the European Court of Human Rights in the cases of L. and V. v. Austria, Sutherland v. the United Kingdom and S.L. v. Austria (§ 39).