Statement

We believe it to be senseless that the effective Penal Code stigmatises all sexual play and activity other than sexual intercourse as perversion. It is similarly senseless that any kind of sexual activities between two persons of the same sex are termed "perversion against nature." These terms create a hierarchy of value concerning citizen's differing taste, emotions, and habits. Therefore these terms are not acceptable in the penal code of a state that respects the privacy of its citizens life style. Terms such as sexual corruption, and incest (blood-infection in Hungarian) suggest that the judgement is not based on the crime committed against the victim, but rather on the prejudice that certain presumed values of the victim decrease. Victims of criminal offence deserve help, consideration and legal justice instead of being stigmatised as spoiled or infected.

In order for a comprehensive protection of self-determination rights connected to sexuality, it is necessary to revise of the conceptualisations found in the definitions of sexual crimes. The effective regulation only considers an act sexual crime when "it serves to arouse or gratify sexual desire". Because of this stipulation, the law protects victims to a lesser extent when during the attack the perpetrator does not seek the gratification of his (or in theory her) own sexual desire in the usual way, but "merely" seeks to degrade the victim and destroy her (or his) sexual freedom and sense of modesty (for instance through torture on the genitalia, or forcing the victim to manipulate her (or his) own genitalia). The definition in the law must take into consideration the findings of literature on rape that in assaults against sexual self-determination rights, the perpetrator typically seeks to wield control over the victim, destroy her (or his) self; and sexuality is only a means of attaining that goal.

The definition in the effective Penal Code that only acts including "force or direct threats against the victim's life or bodily integrity" or "using the victim's state of inability to defend herself or manifest her will" constitutes rape, is insufficient. In violence against adults, just as in sexual crimes against children, in most of the instances the victim knows the perpetrator, he is one of the family members or friends. In such instances, rape is often committed with physical violence and life-threats preceding the rape; the victim's resistance is broken under repeated terror.

It is unjustified that the law provides in four various locations that sexual acts between persons of the same sex and persons of different sexes are to be criminalised under different conditions. We find such unequal judgement unacceptable when a higher age of consent is stipulated for same sex sexual acts (§ 199), when sexual relationships between minors are criminalised ((1), § 201), when the law criminalises a range of acts between siblings ((3) § 203), or when the law defines whether a sexual criminal is prosecuted on request or as the duty of a public office (§ 209). It is a fundamental duty of the state to enforce privacy rights, therefore it may not be committed to either side in the question of whether citizens should have homo- or heterosexual desires. Neither is it the state's duty to influence the direction adolescents' sexual motivations take, but must protect them when they come to weight these free decisions.

It is to be noted here, that the decision of the European Commission of Human Rights taken in the case of appeal No. 25186/94 of 1 July 1997 states that no objective and rationally acceptable justification exists to maintain a higher age of consent in the case of male homosexual acts than that of heterosexual acts. Further, we note that the decision of the European Parliament of 17 September 1998 maintains that no country that violates the human rights of lesbians and gay men in its laws and regulations shall have entry into the European Union (see OJ 313 / 186). We hold that it is necessary for the preamble of the act abolishing § 199 to state that the Parliament is fulfilling a duty derived from the constitution in effect since 23 October 1989.

The law makes an arbitrary move when it provides that young people having sex should be punished if one of them is over, the other is below the age of consent even where the difference in age is extremely small, even when it is no more than one day. In the case of heterosexual relationships the age specified is 14 years, in case of same sex relationship it is 18 years. It is unacceptable that the law criminalises even a slowly developing romantic relationship of young people in love.

The current regulations of the right to sexuality lead to absurdity in defining an absolute age of sexual maturity does not protect adolescents over this age (not even from adults), while it prohibits that any person over that age approach anyone below the specified age. The aspect which is not considered in treating sexual freedom as an individual right is exactly the fact that this right is usually exercised by two individuals at the same time. Therefore, instead of requiring the achievement of sexual maturity, the law should inspect whether the partners enjoy the same and equal freedom in making their decisions.

Thus, for making the older partner punishable, it is a basic requirement for the law to prescribe an age difference over which it is difficult to imagine that the sexual contact was based on the partners' equally free and mutually consenting decision. According to the Penal Code in effect, it is an aggravated crime resulting in automatic public prosecution (ex officio) if a person over 14 years has sexual contact with a person below 12 years. Here again, the regulation must take into consideration the difference between the ages of the partners.

Guardianship over young peoples' sex lives and providing a definition of a right way of life cannot be the task of criminal law. Young people have a right to love and sex. The interference of criminal law into private life is unnecessary when it is doubtful whether the case can be categorised as a victim-perpetrator relation. The reason we need the Penal Code to protect children's' and adolescents' sexual freedom is to prevent them from becoming the mere objects of adult sexuality. Imprisonment must be a threat to those who use their power over the child or teenager to make her/him engage in sexual activity. But a dependent situation may well occur for reasons other than age differences: it can also be the result of a real power position the adult has over the other person. Thus we think it is to be considered that the law should protect children from sexual abuse committed by their relatives, teachers, caretakers, mentors, doctors, up to an age higher than the current 14 years of age.

The consent of a sexually maturing young person to sex is not credible if she or he had to start her or his sex life as a result of pressure form her or his environment. The sexual activities of adults with sexually mature adolescents are mostly a result of the adult's one-sided decision, emotional blackmail or manipulation. The task of legislators is to declare, through penal code regulations if necessary, that young people are entitled to the full range of self-determination rights regarding their sexual life. In this aspect too, we think it is to be considered that the law should protect children from sexual abuse by adults up to a higher age than the current 14 years of age. The law obviously lacks any provisions to punish sexual activities with under age persons for money, as services, or as part of organised crime.

It is to be noted that Article 34 Act LXIV of 1991 enacting the UN Convention on the Rights of Children reads: "Parties to the Treaty hereby oblige themselves to protect children from sexual exploitation or any other form of sexual violence/abuse."


On the other hand, we must express our concerns about the use of criminal law to impose limitations in cases where the dependence of one of the sexual partners is not self evident. Therefore we refuse the prohibition and criminalization of sexual contacts between adults based solely on the basis of their being relatives (§ 203 of the Penal Code). We also find the criminalization of sexual activity between adolescent siblings unjustified. In our opinion the Penal Code may only interfere with the private spheres of individuals if the existence of an offended party can be verified, and there is an offender and an offence on the other hand. It is by no means the task of the Penal Code to uphold family ideals.

In the case of the criminal offence of obscenity (exposure of oneself before another person in an indecent way for the satisfaction of ones sexual desire; § 208 of the Penal Code) we also find it important to consider that the law should criminalise the harassment of the offended party, and the offender's desire to cause sensation, and not the satisfaction of one's sexual desire in itself. The present regulation of obscenity is so vague that, if applied seriously, not only all and any pornographic material, but even masturbation in the presence of one's lover could be considered a criminal act.

We consider it an important task of the state to protect defenceless young people from falling into the trap of prostitution. We suggest that, in cases when the promotion, organisation and exploitation of prostitution is punishable, the client should be criminalised as well. If selling a prostitute is a human rights violation, buying one is also a crime. On the other hand, we oppose the criminalization and punishability of prostitutes in any form since, in most cases, the prostitute does not act on her own will, often she is the victim of pimping. In our opinion the task of legislators in this sphere is the creation of legal regulations that guarantee the freedom, dignity and human rights of the prostitute.

For the issuing organisations, at Szeged and in Budapest, 6th of January, 2000:

Erzsébet Hajgató
South-Alföld Gay Circle

Géza Juhász
Habeas Corpus Working Group

László Mocsonaki
Háttér Support Society for Gay People

Bea Sándor
Labrisz Lesbian Society

Györgyi Tóth
Women Together Against Violence: Women's Rights Organisation

Balázs Pálfi
Rainbow Association for the Rights of Gay Lesbian and Bisexual People

Judit Fridli
Hungarian Civil Liberties Union.