Action/Schwimmer

Informations sur les articles 220 et 221 (abrogés) et 209 (en vigueur) du code pénal

Although the complete prohibition of consensual homosexual acts in Austria was repealed in 1971, new laws were introduced with provisions which were profoundly discriminatory:

a. Article 220 (which was repealed in 1996) effectively banned the publication of information about homosexuality, violating Article 10 of the European Convention. The text of Article 220 read as follows:

"A person who by means of printed matter, film or in any other public manner incites to lewd homosexual acts or to acts of lewdness with animals or who approves publicly of such acts in such a way as to encourage lewd acts is to be sentenced to a prison term of up to six months or a fine up to 360 x a fixed daily rate, which sentence can only be suspended if a more severe sentence is pending".

The phrase "who approves publicly of such acts in such a way as to encourage lewd acts" was so broad in scope as to make illegal any non-condemnatory presentation of homosexual relationships.

While convictions under this law were rare, the threat of prosecution was used relatively frequently by the police in the 1970s and early 1980s to harass the lesbian and gay movement. The existence of the law was also used by public authorities as a justification for refusing services to lesbian and gay organisations. Finally, the law was used to justify the confiscation of safe-sex material, the most recent occasion being in 1994, when the Regional Court of Wels ordered the confiscation of a safe sex video shown by AIDS-Help of Upper Austria at an AIDS prevention event.

b. Article 221 (also repealed in 1996) banned the formation of any organisation which promoted "lewd homosexual acts", thus effectively banning lesbian and gay organisations, in violation of Article 11 of the European Convention.

The text of Article 221 read as follows:

"A person who founds an organisation of a larger number of persons, the purpose of which is, even though not exclusively, to further lewd homosexual acts and which is apt to constitute a public nuisance, furthermore, anyone who is a member of such organisations or recruits members for it, is to be sentenced to a prison term of up to six months or a fine of up to 360 x a fixed daily rate."

Again, the phrases "to further lewd homosexual acts" and "apt to constitute a public nuisance" were so general, and so ill-defined, as to leave any organisations for homosexuals open to prosecution.

While there were no convictions under this law, the threat of prosecution was also used by the police to harass the lesbian and gay movement in the 1970s and early 1980s.

c. Article 209 (still in force) established an age of consent of 18 for male homosexuals, compared to 14 for heterosexuals. There are typically 50 police investigations and 20 convictions each year under this law.

In 1997 the European Commission on Human Rights ruled in the Sutherland case that the UK's discriminatory age of consent law violated the European Convention on Human Rights. The Commission's conclusion read as follows:

"66. Consequently, the Commission finds that no objective and reasonable justification exists for the maintenance of a higher minimum age of consent to male homosexual, than to heterosexual, acts and that the application discloses discriminatory treatment in the exercise of the applicant's right to respect for private life under Article 8 of the Convention.

67. The Commission concludes, by fourteen votes to four, that in the present case there has been a violation of Article 8 of the Convention, taken in conjunction with Article 14 of the Convention."

© Gais et Lesbiennes Branchés