Last edited: April 28, 2007


Romania

  • Statute: Article 200, Repealed July 9, 2001
  • Penalty: 5 years
  • Restrictions: Same-sex only

Romanian law currently punishes being gay with up to five years behind bars. Despite pledging to decriminalise homosexuality in 1993, the new law passed in 1996 prohibits homosexual acts where a "public scandal" is caused. Simply being gay in Romania is so scandalous that all sexual minorities are at risk from this provision which carries a five year penalty.

The law bans gay bars, meetings, associations, bars, clubs, organisations, help lines, media or "or any act of proselytism". The idea is that Romanians will be free to lesbian or gay just as long as not a single other person finds out. Break the law and you face a five year jail sentence.

Romanian police stations still keep "pink lists" or books which hold names, addresses and photographs of "known" or "suspect" lesbians and gay men. Once arrested gay men have been shown albums full of pictures of previous offenders under Article 200. Human Rights activists have strong evidence that prisoners have been "encouraged" to implicate others for Article 200 offences.

Statute

The original text of the more important paragraphs of Article 200 was as follows:
"1. Sexual relations between persons of the same sex are punishable by imprisonment of one to five years.
4. Inciting or encouraging a person to practice the acts described in paragraph 1 is punishable by imprisonment of one to five years."

The more important paragraphs of the revised Article 200 are as follows:
"1. Sexual relations between persons of the same sex, committed in public or if producing public scandal, are punishable by imprisonment of one to five years.
5. Inciting or encouraging a person to the practice of sexual relations between persons of the same sex, as well as propaganda or association or any other act of proselytism committed in the same scope, is punishable by imprisonment of one to five years.

(Translations from "PUBLIC SCANDALS: Sexual Orientation and Criminal Law in Romania", by Human Rights Watch where the full texts can also be found in Appendix 1)

Comments on the new law:
(All references are to "PUBLIC SCANDALS: Sexual Orientation and Criminal Law in Romania")

Paragraph 1 - " public scandal"
This term is completely undefined in the penal code. HRW and IGLHRC consulted many officials on their interpretation of the term. Their opinions were "strikingly, and dangerously inconsistent, on many points. On whether the law can be enforced against acts performed in privacy, however, both those who created the law and those who will enforce it agree that it can". "The new language effectively makes it impossible to determine whether an act constitutes an infraction until after it is committed and publicized: the offense consists less in the specific character of the deed, or in its motive, than in others’ reactions to it. Opinion rather than evidence becomes the final arbiter of guilt. "Our criterion is the mentality of the community where the deed is committed," one prosecutor said, adding, "our community of course does not view this phenomenon with favorable eyes." The language even points to the possibility that the authorities themselves can create, then confirm, public scandal by publicizing the details of a case."

As to what degree of publicity was needed for sexual relations to become a "public scandal", opinions differed: several officials suggested it would require only two or three people to be offended.

Paragraph 1 - "In Public"
Article 152 of the Romanian penal code defines this term very restrictively, including, for example "a place which by nature or purpose is always accessible to the public, even if no person is present". However, as HRW/IGLHRC point out, the "Public Scandal" term is so all-embracing that the entire distinction between "private" and "public" acts is rendered moot. 

"Beyond this, though, the new Article 200’s criminalization of homosexual acts "committed in public" is clearly discriminatory. There is no corresponding provision of the penal code which criminalizes, or even mentions, heterosexual acts committed in public". 

Paragraph 5: - "Inciting or encouraging"
This criminalises even the attempt to engage in a sexual relationship. 

Paragraph 5 - "propaganda, association, or any act of proselytism"

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