Central Europe Review - Legalizing Sex

Romanians Ciprian Cucu and Marian Mutascu were arrested in January 1993. The charge: homosexuality. The following excerpt is taken from the a report investigated by the Human Rights Watch and the International Gay and Lesbian Rights Commission (1998):

Marian and I were separated. I was taken to the pre-trial detention ward for juveniles. My cell had six beds, in which, during the two months I was incarcerated, up to sixteen suspects at a time slept. Before I came into the cell, officers told the supervising inmate that a homosexual was going to be put in the room. As a result, he told me from the very start that I had to have sex with him if I did not want things to go very badly. At first, I resisted, but after a few blows, I was forced to give in. It was the first time I was raped—but not the last. In the course of the following month, he forced me to have sex with other inmates as well, while the other colleagues watched the "show."

Cucu was 17 at the time he was charged—a minor. Mutascu, who suffered a similar experience while incarcerated, was 22. This story was not a one off. Both men were charged under the renowned Article 200 of the Penal Code that declares same sex relations as illegal. Many Romanian men and women have since been charged under the same article. However, things are beginning to change for the Romanian homosexual community.

Confusing international pressures

International pressure on Romania to decriminalize homosexuality has been mounting over the last decade. As a member of the Council of Europe and a future member of the European Union, Romania is expected to adhere to the European Convention for the Protection of Human Rights and Fundamental Freedoms. In many respects, their policies have proven to be more "accepting" of minority groups. For example, the Hungarian minority, once the subject of Romanian repression, is now represented in the coalition government by the Democratic Alliance of Hungarians in Romania (UDMR).

The lot of the Hungarians has improved greatly since the Communist years. Indeed, the Kosovo crisis highlighted Romanian progress on the issue of minority rights, when both US President Bill Clinton and Secretary of State Madelaine Albright commended them as an example for the rest of the Balkans. During a visit to Romania in June 1999, Albright was reported to have said that the Romanian policy of tolerance towards its ethnic minorities "... is one we would very much like to see Serbia emulate." (Reuters, 22 June 1999)

However, many Romanians tend to have a selective view of which groups should be afforded human rights, and, unfortunately, the losers have often been homosexuals or the Roma. Human rights activists have argued that Romania's homosexuals "... are the most ostracized in Europe." (Central Europe Online, 13 September 2000.)

Romanians are obviously receiving two different messages from the international community. On the one hand, President Emil Constantinescu was slated on a tour of Europe and America just after his election in 1996, because his government accepted changes in the legislation to further criminalize homosexuality. (see my article Gay Outlaws in Romania, from 9 August 1999). On the other hand, the international community praised Romanians after the Kosovan conflict, precisely because of their ethnic tolerance.

New law on homosexuality

Despite confusing international signals, the Constantinescu administration has not become complacent and has continued to push for changes in human rights legislation, in particular those relating to Article 200. Although nearing the end of his tenure as pPresident, certain success has been achieved. On 28 June 2000, the Chamber of Deputies (lower house of parliament) voted, in accordance with resolution 1123 of the Council of Europe, to decriminalize homosexuality.

The bill was presented to Parliament in an effort to align Romanian legislation with that of the European Union (EU). The EU has regarded Romanian law as being discriminatory and against the principle of human rights as enshrined in EU law.

Although the law marks a groundbreaking step for the rights of homosexuals in Romania, it does not necessarily broach the problem of discrimination. For instance, this section of the Penal Code, which remains pertaining to the illegality of "abnormal sexual practices, including oral and anal sex, if performed in public."

The phrase "in public" is defined by article 152 of the Penal Code which details that the deed is committed in public when it occurs: in a place that by its nature or destination, is always accessible to the public, even though no person is there; in any other place that is accessible to the public, if two or more persons are there; in any place that is not accessible to the public, if there is the intention that the deed be heard or seen, and that this happens to two or more persons; in a meeting or reunion that gathers more people, except from family reunions, due to the relations among the attending persons; by any means that made the doer realize the deed might be brought to the knowledge of the public.

If article 152 still stands in its original format, then the new law is nothing but a play on words. Any homosexual act could be defined as "in public" under the final categorization, purely because there is always the possibility that a homosexual act may be made public.

Changing mentalities

The interpretation of the law is therefore in the hands of the judiciary. Since 1968, homosexuality has been illegal and cases like that of Cucu and Mutascu abound. The mentality is such that homosexuality is vulgar and unnatural and should be severely punished.

The attitude parallels that of the Communist era, in some respects. During the Ceauşescu rule, the walls had ears and eyes. If one spoke to a Westerner, then one was punished, if one made an anti-Ceauşescu comment, one was punished, if one listened to Radio Free Europe, one was punished. It was impossible to know who was an enemy or a friend.

In Romania today, homosexuals face a similar experience to such an extent that even members of your own family could denounce your sexuality. This is what happened to Cucu. Nonetheless attitudes are changing, the very fact that the new law was accepted by the Chamber of Deputies is proof enough, but as a minority group homosexuals face a barrage of opposition.

Religious opposition

Vehement opposition to the new law has come from the Orthodox Church. His Beatitude Teoctist, Patriarch of the Romanian Orthodox Church, in a letter to the Chamber of Deputies, outlined his objections to the decriminalization of homosexuality as a move against nature: "Even in very difficult moments, our ancestors had been able to definitely make a difference between sin and virtue, because of what is normal and abnormal." (Nine o'clock, 29 June 2000)

Over the past few months, the barrage has continued. On Tuesday 12 September, Father Constantin Stoica of the Orthodox Patriarch's press office stated to Reuters that: "We don't want (gays) in jail, but they shouldn't be allowed to spread their propaganda either." (Central Europe Online, 13 September 2000)

In a two-day meeting of Romania's Orthodox leaders (the Holy Synod) discussions centred around the decriminalization of homosexuality. Although the bill has passed through the Chamber of Deputies it still has to be accepted by the Senate (upper house of parliament). The church has seized this opportunity to petition President Constantinescu and has discussed the possibility of calling for a referendum, if the Senate does, in fact, abrogate article 200.

During their meeting, the Holy Synod denounced homosexuality as a sin: "Everybody should know that homosexuality is a sin against religious and against family and social values, which are at the core of our Church," Archbishop Casian announced at a press conference. (Central Europe Online, 15 September 2000)

The attack by the Orthodox Church has raised concerns amongst ACCEPT, Romania's only gay rights organization, that as the elections, scheduled for 26 November, draw nearer, political parties will begin to court the Orthodox Church. The Church claims that over 80 percent of Romanians insist homosexuality is contrary to Christian values. (Central Europe Online, 13 September 2000). If this is true, then a large proportion of voters could turn against parties that support the new legislation. However, there is little sign of this as yet.

Political opposition to the new homosexuality bill was minimal. Nationalist groups, such as the Greater Romania Party (PRM) and the Party for National Unity in Romania (PUNR), were the main protagonists of opposition. Dumitru Balaiet of the PRM commented that any annulment of article 200 would mean: "homosexuals will wander on the streets, too, not only in the woods." (Monitorul Online, 30 June 2000)

Romania has been trying to impress the Euro-Atlantic institutions with their commitment to minority rights. To a large degree, they have been successful. When compared to the plight of Kosovan refugees, Romania is a veritable oasis for minority groups. However, despite their good intentions, Romanians are having trouble coming to grips with the issue of homosexuality.

Decriminalizing homosexuality in name is a start, but the law still has to pass through the Senate before it is fully integrated into the Romanian legal system. With influential pressures emanating from the Orthodox Church and from Europe and America, and with crucial elections just round the corner, Romanian politicians may not wish to implement a law that is highly controversial.

Catherine Lovatt, 15 September 2000

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