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MOONLIGHT LOVE

Repeal of Article 121
by Professor Igor Kon




"We've waited long enough!" (1993)
Poster celebrating the repeal of Article 121 prohibiting consentious gay sex.

After the dissolution of the Soviet Union, some of its republics (Ukraine, Estonia, Latvia, and Belarus) revoked their antihomosexual legislation. Under strong pressure from Western public opinion and in order to obtain a place in the Council of Europe, Russian President Boris Yeltsin also followed this line and Article 121.1 was repealed as part of a wide-ranging reform law that he signed on April 29, 1993, and published one month later.

Article 121.2 remained in force, but the maximum punishment was reduced from 8 to 7 years imprisonment. The changes were made quietly in a package of many small legal changes without detailed explanation in the mass media. Incorporating these changes into the new Russian Criminal Code proved a long and painful process. The first draft, prepared by the Russian Ministry of Justice and published in a special issue of the magazine Zakon in early 1992, omitted Article 121, but included instead a new Article 132 titled "Muzhelozhstvo or gratification of sexual passion in other perverted forms." According to this, "gratification of sexual passion [or, in another version, "sexual needs"] in other perverted forms (including lesbianism)," if carried out with the use or threat of physical force, or exploiting the vulnerable state of the victim, was punishable by deprivation of freedom of up to 3 years. The punishment had to be much more severe for repeated offenses, for actions committed by persons guilty of rape or by a group, for serious damage done to the victim, or if the victim was a minor under 14. This early draft was extremely confused. Homosexual relations between consenting adults were no longer punishable, but homosexuality was still a "perversion," and the mention of lesbianism in this context was a regressive step.

In Russian law, rape is forced sexual intercourse with a nonconsenting female other than one's own wife. Technically, it must include actual vaginal penetration by the penis, so rape of a male is by definition impossible. Having no acceptable legal terms for oral or anal penetration, jurists call them "perverted forms" of sexual gratification. Sexologically, this is nonsense; in Russia, as elsewhere, anal and especially oral sex are quite popular among both heterosexuals and homosexuals.

The principle of gender equality in sexual relations also presented difficulty. Because rape was believed to be a more serious offense than any other sexual assault, the rape of an adult woman or a young girl was punishable much more severely than any forced sexual assault or penetration inflicted upon an adult male or young boy. In this context, men and boys were "cheaper" than females, but if a man had consensual sex with a sexually mature 17-year-old male he was to be imprisoned for up to 7 years, whereas the same act with a 17-year-old female would go unpunished.

This draft was criticized also for many other shortcomings and was rejected by the Supreme Soviet. A new draft Criminal Code, prepared by a group of lawyers and presented to the Duma by the Ministry of Justice and the president's legal office in mid-1994 was much better (Ugolovny kodeks, 1994). It still had an Article 142 on "Forced Muzhelozhstvo," which this time was punishable exactly the same as rape. Muzelozhstvo, but not lesbianism, was also mentioned in Article 144 dealing with "coercion of a person to sexual intercourse." The draft as a whole was prepared carelessly. In the table of contents. Article 143, which referred to sexual coercion other than rape, was entitled, "The satisfaction of a sexual passion in the perverted forms," whereas in the text itself it was named "Forced actions directed to the satisfaction of sexual needs." In a later version of the draft "perverted forms" has been reinstated. An earlier version, formulated by A. N. Ignatov,1 in which sexual orientation was not mentioned at all, had mysteriously disappeared at the last moment without the working group as a whole having been told of the change.

After prolonged discussion a compromise version was accepted. The new Criminal Code was accepted by the State Duma in July 1995, but it was rejected by the Federation Council and by President Yeltsin. The newly elected (December 1995) Duma again returned to the issue, and the new version of the code was finally approved by both Houses in June 1996, was signed by the President, and has been in effect since January 1, 1997. Chapter 18 of the Code is named "Crimes against sexual inviolability and sexual freedom of individuality," which is an improvement on the 1994 draft title, "Crimes in the sphere of sexual relations." The separate articles on "forced muzhelozhstvo" and "perverted forms of sexual satisfaction" are deleted, but Article 132 covers "forced actions of a sexual nature":

  1. Muzhelozhstvo, lesbianism or other actions of a sexual character committed by use of force or threat thereof against the victim or against other persons, or by exploiting the victim's vulnerability are punished by deprivation of freedom from three to six years.

  2. The same actions, if they are committed:
    a) several times or by a person previously convicted of the crimes foreseen by the articles of this chapter;
    b) by a group of persons with a premeditated conspiracy or by an organized group;
    c) which resulted in a victim's infection of a venereal disease;
    d) wittingly against an underaged person;
    are punished by deprivation of freedom from four to ten years.

  3. Actions which are foreseen by the first and second parts of the present Article if they:
    a) carelessly brought about the death of a victim;
    b) carelessly inflicted heavy damage to his/her health, caused HIV infection or some other heavy consequences;
    c) are committed wittingly against a person under fourteen years old;
    are punished by deprivation of freedom from eight to fifteen years. (Ugolovny Kodeks, 1996)

Article 133 on "Coercive acts of a sexual character" states that: "Coercion of a person into sexual intercourse, muzhelozhstvo, lesbianism or other actions of a sexual nature by use of blackmail, threat of destruction, damage or withdrawal of property, or by exploiting the victim's material or other dependency, is punished by fines or corrective work up to two years or deprivation of freedom up to one year." No specific sexual acts, such as oral or anal penetration, are mentioned, and whether the behavior is homosexual or heterosexual makes no difference.

The law makes an important symbolic tribute to the principle of gender equality in that, with the exception of rape, which requires a female victim, all other criminal sexual actions, such as violence, compulsion, or coercion, can be directed against persons of either gender, the victims in all cases being referred to in the law as she or he. The legal age of consent for voluntary sexual relations in the 1995 draft was set at 14 without any of the differences for gender or for heterosexual or homosexual behavior, which still exist in some countries. In the final version of the code, Article 134 provides that sexual intercourse, muzhelozhstvo, or lesbianism wittingly committed by a person over 18 on a person under 16 is punished by limitation of freedom up to 3 years or deprivation of freedom up to 4 years.

Generally, the new law represents a compromise solution. Partly through personal conviction and partly for political reasons, the legislators refused to eliminate homosexuality altogether from the criminal code. An open defense of homosexuality could be detrimental to the electoral prospects of any political party. Paradoxically, only the archreactionary Vladimir Zhirinovsky, among all Russian political leaders, had the courage, before the 1993 elections, to defend publicly, in a long speech on television, the human rights and reputation of homosexuals. But since that was the only evidence of his "liberalism," his words can't be taken seriously. All other political parties, including "democrats" (who have been accused of being pro-Western and ruining the Russian economy), try to appear as conservative as possible on family matters. The defense of "traditional Russian family values" is hardly compatible with sexual liberalism.

All the same, homosexual contacts between consenting adults have finally been decriminalized. The inclusion of lesbianism for the first time in Russian legislation follows the principle of gender equality; possibly the provision will receive only lip service with no practical consequences. The fact that muzhelozhstvo and lesbianism are no longer defined offensively as "perverted" or "unnatural," but mentioned at the same level as sexual intercourse, is a reminder that all forms of otherwise acceptable sexual acts are illegal if nonconsenting.

Professor Ignatov was especially active and persistent as a member of the working group trying to convince his more conservative colleagues. After I sent my criticisms and suggestions in a letter to the Duma, I was invited for a personal discussion with the Duma's Committee on Legislation. The Deputy Chairman of the Committee, V. V. Pokhmelkin, agreed with almost all of my suggestions, but Professor I. M. Galperin was against them. To clear the matter of "perverted forms" I asked them, "Gentlemen, I imagine you have oral sex with your wives and lovers without any remorse, yet in your draft law you call it "perversion." Have we not enough hypocrisy in this country?"

© 1998 Professor Igor Kon


  SEE ALSO

Previous chapters:

Next chapters:

1996 Criminal Code of the Russian Federation
Extracts from the effective Criminal Code of the Russian Federation on forced homosexual intercourse and related offences.


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