Saturday, September 18, 2004

Austria: Enduring Persecution of Gay Men

Almost Exclusive Enforcement Against Gay Men

Platform Against Art. 209 calls for repeal of the substitute for the anti-homosexual Art. 209

Austrian Minister of Justice, Karin Miklautsch, in replying to a parliamentary question announced that the substitute provision for anti-homosexual Art. 209 Criminal Code, repealed in 2002, while being gender-neutral in wording, still is enforced nearly exclusively against same-sex relations.

More than three quarters (78%) of all cases brought to court in the first half of 2004 concerned homosexual relations. All of the persons carcerated under that law were homosexual men.

One man has even been convicted despite the fact that the court did not know anything about his partners; the court did not the nature (!) or the amount of the remuneration nor did it know how “immediate inducement” (see Art. 207b par. 3 below) did take place; it did not even know the identity or the age (!) of the adolescents. The Minister of Justice – despite having been specifically asked for – refused to reveal how the court, on this basis, could come to a conviction, what reasons
it has given for the conviction.

The Minister also revealed that criminal proceedings again and again are instigated without reasonable suspicion for an illegal contact. Sexual contacts with adolescents between 14 and 18 alone (without more) suffice for the prosecutors to ask for criminal investigations to find out whether one of the offences enshrined in Art. 207b might have been committed. That is as criminal investigations would take place for each sexual contact to clear whether it is rape or not.

The government always has emphasized that it did not want to criminalize consensual sexual acts but only certain constellations of abuse, in which the will of a juvenile is overridden by unacceptable means. Critics however feared that relations with adolescents would be put under a general suspicion of criminality and that the sole fact of a sexual contact would give rise to criminal investigations. Exactly that is taking place now. An outraging example being the case where the
prosecutor initiated court proceedings on the ground of an ad in which a person searched for adolescent partners; so on the ground of completely legal behaviour.

The European Parliament in 2003 called on Austria to enforce Art. 207b without discrimination (Resolution on Fundamental Rights in the EU, 04.09.2003, par. 79).

“The plan of the government turned out as quite successful: the justice system has accepted the substitute provision for Art. 209 as substitute in the true sense of the word”, says Dr. Helmut Graupner, spokesperson for “Platform Against Art. 209”, “We are calling for the repeal of the law and we ask the Minister of Justice to, at least order the prosecutors to enforce the offence on the basis of the law”.

The interdenominational and supra-partisan Platform Against Article 209 comprises more than 30 organisations that joined in the fight against the discriminatory supplemental minimum age of 18 years for homosexual relationships between men only (in addition to the general age of consent of 14 for heterosexuals, lesbians and gays alike), as set forth in article Art. 209 of the Criminal Code. Nearly all associations of the homosexual movement, but also general organizations are members of the Platform, like AIDS-help-organisations, the Ombudspersons for Children and Adolescents of the States of Vienna and Tyrol, the Austrian National Student Union, the National Association of Probation, the Austrian Society for Sexual Research, and many others more. After the repeal of Art. 209 the Platform works for the release of all prisoners, for the deletion of all verdicts from criminal records and for just satisfaction of all victims of Art. 209. In addition it monitors the enforcement of the new Art. 209-substitute-provision, Art. 207b Criminal Code.

Reply of the Minister of Justice (full text):

Art. 207b Criminal Code contains three offences. Paragraph 1 makes it an offence to engage in sexual contact with a persons under 16 which for certain reasons is not mature enough to understand the meaning of what is going on or to act in accordance with such understanding provided that the offender practices upon the person’s lacking maturity and his
own superiority based on age. Paragraph 2 makes in an offence to engage in sexual contact with a person under 16 by practicing on a position of constraint. Paragraph 3 makes it an offence to immediately induce a person under 18 against remuneration.

More information:
Platform Against Art. 209: +43/1/876 30 61, 0676/3094737, HYPERLINK


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