4. UNDER PRESSURE FROM EUROPE

Revising Article 200

Article 200 unexpectedly became a barrier to the main priority--integrating the country into European institutions--of Romania's post-revolutionary governments. Rapporteurs from the Council of Europe, visiting Romania in April 1993 to investigate its human-rights record after it applied for admission, raised the issue of homosexuality. The government responded:

It is true that sexual relations between people of the same sex are a punishable offence under Article 200 of the Romanian Criminal Code . . . In pursuance of this text, a number of people are at present serving prison sentences for homosexuality. . . .

It must be said, however, that total decriminalisation of homosexuality would not seem possible at present, since acts of this kind are alien to the Romanian people's mentality, and offend the general moral feeling and religious conscience of the great majority of the population.⁽¹⁾

Even before the rapporteurs' visit, attempts to discuss Article 200 in parliament had led to uproar. In February 1993, when the article was mentioned in a debate on provisions against prostitution, Senator Emil Tocaci indignantly proposed that male homosexuals should be kept in women's penitentiaries, and vice-versa.⁽²⁾ The very possibility that Romania's admission to the Council of Europe might hinge on repeal of the law, though, produced a storm. One nationalist newspaper advised the government to hang out a "fluorescent signboard" with the legend "Homo-sex-rom-euro-club."⁽³⁾

Mainstream figures concurred. Corneliu Coposu, leader of the Christian Democrats (PNTCD), the largest opposition party, pledged to "fight sexual aberrations":

The Christian moral conception which remains the basis of our party's doctrine leads us to combat every deviation from the law of nature and from the moral principles of a future balanced society. Without hesitation, in debating this point of American inspiration, we give the word that we are categorically opposed . . . We contend that liberty must be blocked by the liberty of others--when the collective sentiment of a group or a tradition is injured by some initiative pretending to be "progressive" and modern, we must oppose it . . .⁽⁴⁾

The then Minister of Justice, Petre Ninosu, contributed what became a catch-phrase and cliche: "One of the most discussed passages of the penal code is Article 200, which punishes the animals who practice homosexual relations. This article has not been repealed, which seems to me quite normal. If we let homosexuals do as they please, it would mean entering Europe from behind. Homosexuals are our last problem."⁽⁵⁾

Voting in September 1993 to admit Romania, the Council of Europe's Parliamentary Assembly imposed a simultaneous mandate, in two amendments to the resolution, to "discontinue the punishment of homosexuals."⁽⁶⁾ The Romanian government half-complied. It finally brought before parliament a proposal to amend Article 200, paragraph 1: this reached back nearly sixty years to resuscitate an old phrase from the 1936 penal code, punishing "sexual relations between persons of the same sex, if producing public scandal," with 1-5 years' imprisonment. Paragraph 5 would also be changed to punish "inciting or encouraging a person, in public, to commit the acts referred to in preceding paragraphs" with 1-5 years' imprisonment.⁽⁷⁾

Adding urgency, in July 1994 the Constitutional Court ruled on the Sibiu case, involving the defendants Banu, Blaga, Bozdog, Hopris, Nastase, and Stoica, as discussed above. After intense international pressure, the court found the existing language of Article 200 violated protections for privacy in Article 26 of the Romanian Constitution.⁽⁸⁾ It allowed the law, however, to continue to punish homosexual acts "committed in public" or (without attempting to define the term) "causing public scandal."

Public opinion probably ensured that the debate over Article 200 would be heated. One survey in 1993 showed that 85 percent of respondents held that homosexual acts were "never justified."⁽⁹⁾ But the argument went on for three years, during which all penal code reform was held hostage. Two influences particularly extended and intensified the agony: those of the Orthodox Church and of the media.

As one member of parliament told Human Rights Watch and IGLHRC, "The Orthodox Church has been more dogmatic with respect to this issue than in almost any other. . . . They were looking for an issue to use. Perhaps it might have been abortion, but the public sentiment against the old abortion laws made that dangerous to press. So they pressed homosexuality."⁽¹⁰⁾ Most religious leaders in Romania opposed any changes in the law⁽¹¹⁾; but the Orthodox Church's interventions were uniquely vociferous. Patriarch Teoctist regularly condemned, in statements read at services throughout Romania, "the acceptance of the degradingly abnormal and unnatural as a natural and legal lifestyle."⁽¹²⁾ The church's share of religious programming on state TV was repeatedly turned over to attacks on altering Article 200. An association of seminary students, Asociatia Studentilor Crestin-Ortodocsi din Romania (ASCOR), organized a huge petition to the president and parliament, blasting homosexuality as "propaganda of human degenerates."⁽¹³⁾ According to Dan Martian, then president of the Chamber of Deputies:

During the debate ASCOR bombarded the deputies with information, petitions, and appeals, which all the took the line of criminalizing homosexuality, accusing those who wanted to decriminalize it of immorality or atheism . . . In several electoral districts deputies had to face groups from the populace who asked how decriminalizing homosexuality could be squared with the Christian traditions of the Romanian people.⁽¹⁴⁾

Almost all the government officials interviewed by Human Rights Watch and IGLHRC cited the role of the Orthodox Church in the debate--from legislators down to the local prosecutor who observed that "obviously, our point of view is guided by the Church in these matters."⁽¹⁵⁾ A Christian Democratic member of parliament explained:

In my personal opinion, you must consider some cultural and historical patterns. If the Catholic Church was an institution above all states, and if the Reformed Church started from a firm doctrine of separation from political life, the Orthodox Church was always an instrument of the state. Even under Communism--in Russia, elsewhere, and also here--it was used as a strong state tool. Many priests were also in the state services, and not a few worked for the Securitate. Now, of course, they are operating independently; they make their own policy. But they will not give up the benefits, or the connections they feel they should have to the state, easily.⁽¹⁶⁾

The mass media, particularly print journalism, also exploited the topic. "Vice remains the first step to crime," one national newspaper trumpeted even as the Council of Europe rapporteurs framed their questions to the government. Among the hundreds of papers that had mushroomed after 1989, many relied on crime reporting to boost sales. The fact that homosexuality was still illegal made it easy to connect it to the category of violent crime. The murder of a popular musician, Ioan Luchian Mihalea, in late 1993, cemented the association. Police revealed that Mihalea was gay, and his death--an act of brutal violence practiced on a homosexual--was replayed luridly and incessantly in the press as a "homosexual murder." Before 1989, "homosexuals did not officially exist. Then appeared scandals and criminality," one newspaper declared, under the headline, "Homosexuals commit ferocious crimes."⁽¹⁷⁾ Homosexuality was also tied demagogically to the sexual abuse of children. (Deputy Gheorghe Stancov told Human Rights Watch and IGLHRC that, in 1996, "at the same time we were debating the law, a huge scandal involving pedophilia erupted in Belgium. The press it received was very bad for the homosexual cause here." Reminded that the Belgian crime--like most cases of child abuse--involved the heterosexual abuse of girls, he observed, "Unfortunately, in Romania, that is a nuance.")⁽¹⁸⁾

Finally, both the extremist press and more mainstream journalists used the connection with the Council of Europe to play on nationalist sentiment, identifying homosexuality as a corrupt incursion alien to indigenous values. Let Europe have its way, one journalist warned, and "the whole country will be a house of tolerance [brothel] . . . while the West advances to Sodom and Gomorrah."⁽¹⁹⁾ "If Western gentlemen embrace abnormality, let them, it's their problem," another intoned. "If this Council of Europe is composed of homosexuals, good riddance to them, and their whole Europe too."⁽²⁰⁾

Discussions of Article 200 in parliament often skirted hysteria. "Where," one senator demanded, "are those Romanians who conquered the world through the proper use of their sexual organs?"⁽²¹⁾ The first vote of the Senate Judiciary Committee on the issue, in November 1993--just after the Mihalea murder--actually increased penalties for most paragraphs of the article⁽²²⁾; and in October 1994, with only twelve votes dissenting, the Chamber of Deputies voted to retain the existing language, defying European objections as well as the Constitutional Court. One observer reports, "The mere mention of the Council of Europe generated booing and cursing in the hall."⁽²³⁾ Later and more soberly, the chamber revisited the vote, and both houses accepted the public scandal language for inclusion in an omnibus bill of penal code revisions. However, in late 1994, this omnibus bill itself was voted down. The government's parliamentary majority depended on three extreme nationalist parties; these deserted the government, claiming the bill's partial liberalization of homosexual activity struck at national honor. An entire Ceausescu-era document was left intact because of one contested provision.

Dan Martian, a leader of the governing party, told Human Rights Watch and IGLHRC, "When the penal code failed, it created huge problems for us. We had to confront this very unpleasant loss of face. We were preoccupied with devising a way to pass the penal code revisions after that."⁽²⁴⁾ The same farce, though, was replayed in the 1995 parliamentary session: again the entire package of penal code changes failed because it modified Article 200.

The article became linked with several other proposed penal code provisions, which would ban "transmission of false news," increase penalties for slander, and prohibit the display of foreign flags. All were brainchildren of a government still seeking to control and constrict, where possible, the public sphere. But, Martian says, "With these articles it was easier to reach agreement than with 200. Opposition to altering 200 was inflexible, adamant, and we could not reach a consensus." The other proposals were criticized as too harsh; Article 200 was condemned as too indulgent. One legislator combating the changes called Article 200 "the Gordian knot of the penal code."⁽²⁵⁾

In 1996, only a few weeks before national elections, the governing party at last succeeded in passing the omnibus bill. Martian says, "in the pre-election atmosphere certain deputies would not take the risk of voting against the entire penal code a third time." The final debate took place at frenzied pitch. Deputy Emil Teodor Popescu of the Christian Democrats, one of the most strident opponents of modification, declared incest preferable to homosexuality, because it at least preserved the chance to procreate. Another deputy said: "At this time, the interest of society must prevail over the rights of the individual. This is not the moment to accord individual liberty."⁽²⁶⁾

The law as finally passed was officially promulgated on November 14, 1996. The new paragraph 1 penalizes consensual, adult homosexual relations with one to five years' imprisonment under two conditions: when "committed in public," or "if producing public scandal." A new paragraph 5 included language criminalizing "propaganda or association or any other act of proselytism" for same-sex sexual relations, further restricting freedoms of expression and assembly for lesbians and gays. The full text of the new article reads:

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.

2. The act of a major having sexual relations with a minor of the same sex is punishable by imprisonment of two to seven years and denial of certain rights.

3. Sexual relations with a person of the same sex incapable of defending him/herself or of expressing volition, or through force, are punishable by imprisonment of three to ten years and denial of certain rights.

4. If the acts described in paragraphs 2-3 result in grave damage to bodily integrity or health, the punishment is imprisonment from five to fifteen years and denial of certain rights; if they result in the death or suicide of the victim, the punishment is imprisonment of fifteen to twenty-five years and denial of certain rights.

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.

The Concept of Public Scandal

From the moment in 1993 when the Romanian government moved to revise Article 200, it presented its proposal as fully adherent to European norms.

Others, however, disagree. Amnesty International has held that "'causing a public scandal' is such a broad term it could lead to varying and contradictory judicial interpretations."⁽²⁷⁾ One expert witness consulted by the Chamber of Deputies' Judiciary Committee called the term "an artificial notion, judicially unconvincing, marked by hypocrisy and repressive ideology"⁽²⁸⁾; another commentator calls it "scandalously imprecise."⁽²⁹⁾ The term is, as one prosecutor observes, "completely undefined in the penal code"⁽³⁰⁾--although it occurs in two other articles inherited unchanged from 1968: Article 201, dealing with "sexual perversion," and Article 321, both discussed below. Senator Peter Eckstein told Human Rights Watch and IGLHRC that the term is "a chewing-gum notion: you can stretch it any way you like. But it's a charge that can stick."⁽³¹⁾

The law seems aimed at public behavior. Yet its context is a country where private life was virtually eradicated over four decades. Emil Teodor Popescu--a fierce opponent of leniency toward homosexuality--observes, "Westerners cannot understand how difficult it is to speak of private life here. Nothing was private, everything was public."⁽³²⁾ Officials who spoke to Human Rights Watch and IGLHRC repeatedly stressed the tenuousness of privacy in post-Ceausescu Romania, and the fragility of legal protections for it. A crucial question, therefore, is whether the new law can be used against acts committed in supposed or seeming privacy. Because the law is so new, few cases exist so far to indicate how it will be interpreted; the opinions of officials are the best available guide to its future use. Those opinions are 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.

Gen. Ovidius Paun of the General Inspectorate of Police (IGP) in the Ministry of Interior told Human Rights Watch and IGLHRC:

What we understand by public scandal is any action that arouses the citizens, even if not done in public, but if done in conditions that cause public indignation. Suppose that two people of the same sex enter into relations in a room, but in view of a window, so that people passing in the street can see. Obviously the people will stop, make negative comments. In this condition we say the action raises the indignation of the public.⁽³³⁾

Senator Ion Vasile of the Senate's Human Rights Commission suggested that scandal need not even be triggered by specific sexual acts--those could be inferred simply from the fact of a person's homosexuality:

In a bloc of flats where twenty families live, say, one of the people is known to be homosexual. The majority will not accept this. They are very concerned about living in the same bloc with this kind of person. There is concern because most of these people have children, who might be molested, might adopt this person's way of living. . . Scandal doesn't necessarily mean a scandal in the juridical sense; it means also that problems of some sort already begin. Popular concern could constitute a scandal. . . . We are trying to make it possible to exclude that man from the community as a danger to it.⁽³⁴⁾

A legal expert to the same committee said public scandal would exist if, "in a bloc of flats where there are many people, children, families, things happen in one apartment that disturb the neighbors--be it obscene words, things that contradict moral principles, people who are seen naked or half-naked." And Capt. Tudor Cojocaru of the Brasov police offered a concrete example of a case from 1995:

There were two men, both married. The wife of one caught the two of them in the bedroom, in the act of having sexual relations, and she created a public scandal. She told the neighbors; she came to us, and insisted that we do something. We launched an investigation, because we couldn't get rid of her. The two admitted that they had homosexual relations, and ultimately were sentenced.⁽³⁵⁾

Protections for privacy thus seem vulnerable at best, and further attenuated by social and cultural conditions which breed contempt for it. As Senator Vasile said, "Relationships between people living in the same bloc are extremely intimate; their lives are transparent, whereas in the West you may not know your neighbor." And a Ministry of Justice official observed that "Our legal system is waiting for the development of a respect for private life which has not existed before."⁽³⁶⁾

At same time, General Paun contended, "Public scandal depends on willing that an action be made public. The perpetrator must have the express intention that it can be heard or seen." Deputy Lupu confirmed this: "Public scandal in my view is a deliberate act of a person intending to create public scandal." However, Vasile Luha, chief prosecutor in Alba Iulia, told Human Rights Watch and IGLHRC, "There are no limitations: the act can come to the awareness of the public by any means. The revelation does not need to be willed or intended."⁽³⁷⁾ As long ago as 1993, a police official told IGLHRC that public scandal could be created by a homosexual couple who "make too much noise."⁽³⁸⁾

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."⁽³⁹⁾ The language even points to the possibility that the authorities themselves can create, then confirm, public scandal by publicizing the details of a case. For example: in one court sentence (under Article 201) from 1993, the arrest was justified post-facto, and "public scandal" was discovered, in "a sentiment of repulsion and revulsion . . . evident in expressions of public protest, immediately upon the publication of information in the local press"--information which could only have come from law enforcement officials themselves.⁽⁴⁰⁾

Yet a curious numbers game sets the rules for what constitutes a "public." Prosecutor Luha commented: "To 'come to the knowledge of the public,' it is enough to have a few people from the immediate circle in which the persons live comment negatively on the acts." Prosecutor Evgenia Varvescu of Iasi said that "a minimum of three persons must express indignation." a police officer pegged the minimum at "two or more." And a prosecutor in Constanta identified public scandal as "when the act becomes known to someone else, even one single person, who objects." The chief inspector of police in Constanta agreed: it happens "when anyone finds out, pure and simple."⁽⁴¹⁾

Understandably, many officials were anxious to pass on responsibility for putting these definitions in order. Mariana Valeriana Stoica, of the Chamber of Deputies, maintained: "Defining public scandal is a matter for lawyers and not for parliamentarians." a Ministry of Justice official held, "It is people working on a practical level in the criminal justice system who will decide the meaning of the term."⁽⁴²⁾

Even those people, however, may approach the phrases gingerly. One prosecutor insisted that he has "no definition of public scandal," and that "only trials will decide an interpretation."⁽⁴³⁾

Officials spoke of the new law as a "balance" between "protecting a minority, but protecting the majority as well." "We tried to sweeten the punishment as much as possible," Deputy Popescu said.⁽⁴⁴⁾

These protections seem slight at best. As for the assertion that "homosexuals are only imprisoned if certain limits are overpassed," it remains impossible to fix exactly what those limits are.⁽⁴⁵⁾

"In Public"

Article 152 of the Romanian penal code reads:

An act is considered performed in public when it was committed:

a) in a place which by nature or purpose is always accessible to the public, even if no person is present;

b) in any other place accessible to the public, if two or more persons are present;

c) in a place inaccessible to the public, with the intention that the act be heard or seen, and if this result is produced in the presence of two or more persons;

d) in an assembly or meeting of two or more persons, with the exception of meetings which can be considered of a family character, due to the relations between the persons participating;

e) in any way which the perpetrator is aware is likely to come to the knowledge of the public.

This definition has remained unchanged from the 1968 penal code. The code itself has no corresponding legal definition of privacy; it may indeed be questioned whether "privacy" in the sense of a zone of personal autonomy exists in the Romanian language.⁽⁴⁶⁾ The description offered few significant restrictions on police or judicial incursions given the society of surveillance in which it was written.⁽⁴⁷⁾ Letter (c), for example, could conceivably be interpreted to render many acts committed in a dwelling-place "public." Even the notion of "accessible to the public" could be problematic: Ministry of Justice officials were unable to say whether it would include a hotel room.⁽⁴⁸⁾

For gays and lesbians, however, the very existence of the "public scandal" language in paragraph 1 of Article 200 effectively renders moot the entire distinction between "private" and "public" acts. It establishes that, for a reviled minority, acts committed in what are legally private spaces have no defense against becoming, through no fault of their actors, objects of public concern. The language deprives gays and lesbians of equal access to privacy: a consequence compounded by the unclear definitions of privacy offered by, or implicit in, the laws, and--in overwhelming degree--by the actual transparency of supposedly "intimate" life to surveillance over four decades in Romania. Under such circumstances, for gays and lesbians, privacy becomes a scarce and chance commodity, to be captured where one can.

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.

Human Rights Watch and IGLHRC asked repeatedly how heterosexual relations acts committed in public would be punished. Deputy Gheorghe Stancov said, "During the debates I drew the attention of other MPs to cases of heterosexuals who were caught in the act. I cited the example of a man and woman caught having sex in a park who were lightly fined. This was discrimination."⁽⁴⁹⁾

Only two laws, it appears, could be applied to heterosexual sex in public. In Article 321, "a person who, in public, commits deeds or gestures, proffers words or expressions, or makes any other manifestation which tends to offend good morals or to produce public scandal" is punished with three months to two years' imprisonment--far less than Article 200, paragraph 1 provides--or a fine. Stancov also argues that the "public scandal" language common to the two laws would be invoked unequally, and limits this law's possible application to heterosexuals:

If you see a heterosexual couple behaving in a way that suggests they have sexual relations, no one is scandalized enough to bring Article 321 to bear: it is normal sexuality, if it attracts attention it is only because we Romanians still feel a little embarrassed about publicizing such intimacies. But if two men even hug or hold hands in public, it certainly creates a scandal under Article 200. And then if it is found they are a couple, or that they have indeed had sexual relations, they would be prosecuted.⁽⁵⁰⁾

Several officials stated they would never use Article 321 to penalize heterosexual acts.⁽⁵¹⁾ Captain Cojacaru of the Brasov police said the maximum punishment he could conceive would be under Law 61/1991, passed after the Revolution to regulate public behavior without filling the overcrowded jails. It imposes fines on an extensive series of violations, including "engaging in public in obscene or injurious deeds, acts, or gestures . . . which disturb the public order and peace, or which provoke the indignation of citizens."⁽⁵²⁾

Still, it is questionable whether heterosexual sex would provoke sufficient indignation to jumpstart the law--any law--into action. Asked about these discriminatory punishments, Deputy Vasile Lupu explained, "in the conception of the Romanian people, homosexual relations are abnormal and must be treated differently." One prosecutor was more direct, shouting: "All sexual relations are not equal. It is absolute craziness to expect there to be the same law for normal people and for curisti!"⁽⁵³⁾


Recent Cases Under Article 200, Paragraph 1

Although the new language of Article 200, paragraph 1 came into force only in late 1996, it was clear from the time of the Constitutional Court's ruling in mid-1994 that, in order to stick, convictions should be framed so as to fall under the rubrics of "public scandal" or "committed in public."⁽⁵⁴⁾ It is also clear that arrests and convictions have continued.⁽⁵⁵⁾ Examples of prosecutions since the Constitutional Court decision indicate a persistent difficulty in defining as "public" the space in which an act was committed--leading prosecutors to prefer trying cases under "public scandal," as an easier point to prove; and a discriminatory and often brutal crackdown on any expressions of homosexual desire.

The Case of Gheorghe Murariu, Constantin Pirvu, and Mircea Rusu

In May 1997 in Constanta, three homeless people--including a sixteen- and a seventeen-year-old boy--were arrested under Article 200 for sexual relations practiced in a cabin where they were living. The case displays an unrestrained use of Article 200 against populations which law enforcement officials consider undesirable--in this case, copii ai strazii or "street children," and other vagabonds.⁽⁵⁶⁾

Human Rights Watch and IGLHRC spoke to the prosecutor in the case, Mariana Vutcovici, who alleged that Gheorghe Murariu, born in 1958, had been a "passive homosexual" since he was fourteen. A veteran of orphanages and correctional schools, he was released from jail in 1996 after serving a term for theft. From then he lived on the streets, from town to town.

Behind the Teatro Fantasio in Constanta, he discovered a row of deserted storage cabins, metal booths with doors, surrounded by a high concrete fence. In May 1997 he moved into one.⁽⁵⁷⁾

The cabin next to Murariu's was occupied by a group of copii ai strazii of varying ages. According to the prosecutor, one of them, Constantin Pirvu, sixteen, approached Murariu and invited him to have sex. They did this twice in Murariu's cabin, while--Vutcovicii claims--the other children spied through a hole in the cabin wall.

On May 26, 1997, in the same place, Murariu also had sex with Mircea Rusu, seventeen, whom the prosecutor identified as another "street child." They were caught in the act by two civil guards, who took all three of them to the police.

Murariu was charged Article 200 paragraph 2, for sexual relations with minors. However, because the minors acted "with free will and under no constraint," the prosecutor also charged them under paragraph 1. The machinery of the law was scrupulously attentive: Pirvu was charged on two counts, having had sex with Murariu twice; moreover, because he allegedly stood guard outside the cabin, he made himself an accessory to Murariu's and Rusu's crime. "For all that," the prosecutor said, "he will get six years, and perhaps serve all of it."⁽⁵⁸⁾

In the indictment and in an interview with Human Rights Watch and IGLHRC, the prosecutor identified the act not as "committed in public" but as "causing public scandal." Significantly, she preferred not to enter into the legal question of whether a closed cabin was "public" under Article 152, instead explaining that the sexual acts either were seen by or became known to the other street children," who were "scandalized by them."

In June 1997, Human Rights Watch and IGLHRC were able to speak to the three accused separately in the Constanta lockup, where they had been held since their arrest. The interviews were supervised by Major Minea, the head of the lockup, who interrupted repeatedly, refused to allow certain questions, and bullied the two minors about their replies. "You cannot treat these children as if they are innocent," he said. "You are not allowed to encourage them. If they were set free, they would go back to the same cabin and do the same things."

Constantin Pirvu and Mircea Rusu were crying throughout the interviews. Constantin said he had run away from his family only three weeks before his arrest. Mircea, despite the prosecutor's statements, was not a "street child." He lived with his parents, knew Constantin and his family who had been their neighbors, and had been visiting the cabins because he ran into Constantin near the theater on the night in question. His parents had not been permitted to visit him since his arrest. "I did it willingly but if I had known what it meant I wouldn't have done it," he said, crying uncontrollably.

Gheorghe Murariu was barefoot and in torn clothes. In the presence of Major Minea, he said that all three had been beaten severely after their arrest, both by the civil guards and by a major in the municipal police. He claimed to have suffered since from difficulty in breathing because of the beatings. Murariu cannot read or write. He said that at the municipal police station he signed three statements under threat of further beatings, but was not told what was in them.

All three are now facing trial.

The Case of Radu Vasiliu and Adrian Gabriel Presnac

In Iasi, in September 1996, two seventeen-year-old boys were arrested and charged under Article 200, paragraph 1. Police asserted they were having sexual relations in public: the two maintain they were only kissing. Both also recount how police beat them sadistically for hours. Their account reaffirms that any public expression of homosexuality can be transformed--under police pressure--into "sexual relations," and made punishable under Article 200.⁽⁵⁹⁾

Radu Vasiliu and Adrian Gabriel ("Gabi") Presnac both come from extremely poor, working-class families in Iasi; Gabi was taken from his parents' custody some years ago by the state, and given to his grandmother. The two lived in the same neighborhood, and had been close friends for several years. At around 8:00 PM on the night of September 15, 1996, they found themselves drinking a bottle of wine on the grounds of a restaurant, shielded by bushes and shaded by a tree. The two boys sat there, in relative seclusion. Both insist firmly that no sexual act took place: that they were only embracing and kissing.

The doorman saw them from the terrace. As he approached, he saw them touching. Presnac remembers him shouting: "Curisti!" With a waiter, he dragged the two to a police car parked nearby.

The car held four policemen. The boys were stretched on the ground, searched, and asked if they had stolen anything. According to Presnac, officers kicked him twice in the stomach as he lay on the ground; when they were loaded in the car, he was slapped several times.

At the Sector 2 police station, police ordered them to write statements which officers dictated to them. Vasiliu says he "had problems" with his statement--Presnac elaborates that his friend has difficulty writing. Because he ruined two sheets of paper, policemen hit him five times with clubs in the palms of his hands.

Asked his age, Presnac responded that he was eighteen, "minus two months."⁽⁶⁰⁾ Police demanded that he write in the statement simply that he was eighteen--perhaps hoping to charge him as an adult for having sex with a minor. He gave his grandmother's address, but police records still showed him living with his parents:

They said I was lying and they beat me very hard. There was a tall blond man in civilian dress who singled me out. He hit me with fists in the forehead and the back of the head. They wanted to know who else I did it with, and they beat me sadistically to get names and addresses. They kept knocking my head against a desk, till one of my teeth was knocked out and there was blood pouring from my mouth. Finally, I admitted that I had had sex with a foreign student who had left the country. Then the blond policeman took me into another room for another statement. He asked me which of us had the idea first "to do something like this." I told him that whatever we did, we both wanted to do it. He told me, "Your friend has already said you were the one who came up with the idea." He hit me in the head and struck me with his club till I added to my declaration that I had started it. They were always asking us who was the girl, who was the boy. I would tell them, "We are both boys": then they'd slap and hit me. We were like two punching bags.

Meanwhile, police were pressuring Vasiliu (the taller and stronger of the two) to write in his statement that he had raped Presnac--threatening him, "We'll beat you to death": it appears they were toying with several different frameworks for charging the boys. Vasiliu eventually produced a statement, under dictation, in which he said the two had anal sex in which Vasiliu played the active role; then had oral sex, reversing roles--all this taking place under the tree near the restaurant.

The two were handcuffed and, around 11:00 PM, taken by car to the central municipal police station. There police slapped their faces again and hit them over the shoulders. They were separated and put in cells. A policeman told Vasiliu to stand with his face to the wall of his cell, "because I'm sick of you." For the next hour, whenever the guard passed the cell, he would enter and beat Vasiliu if he noticed his head turned away from the wall. Finally the boy was allowed to lie down and sleep.

In the morning the two boys were fingerprinted, then returned to the lockup. Vasiliu was put with his face to the wall, while Presnac was forced to wash the floor of the three cells in the lockup and the corridor. They were then hauled to the police toilets. Vasiliu was given a chip of brick and told to scrape the filthy toilet bowls clean; his head was shoved in the bowl while it was flushed. Police urinated in the urinals; then Presnac was made to clean them with his bare hands.

In the afternoon they were taken to the hospital. Doctor Pandeli, a forensic expert, performed tests on the penis and anus of each. Presnac complained that she hurt his anus in inserting a probe. She retorted: "You like it when you stick a huge cock up your anus: it doesn't hurt then."

At the station, they were again separated: new declarations were dictated to them, recapitulating the previous ones. While Presnac wrote his, police struck him till his nose bled; one policeman kicked him again and again, calling him a "perverse whore." Finally, at about 7:00 PM, they were released.

Although they were free for the moment, the legal case still hung over them. According to Presnac's grandmother, police in the neighborhood followed and harassed him for months, till his parents "begged them to stop beating him." In December, he fled; his whereabouts are unknown. The grandmother believes he may have left the country; Vasiliu fears he has committed suicide.

The Romanian Helsinki Committee hired a lawyer for the two. The attorney told Human Rights Watch and IGLHRC that "gossip around the court" was that prosecutors were embarrassed by the case and initially wished to drop it. However, an indictment was handed down in December 1996, charging the two under both Article 200, paragraph 1 and Article 201, paragraph 1, and accusing them of having both oral and anal sex outside the restaurant.⁽⁶¹⁾ In this case, too, the two are cited for producing public scandal, by scandalizing the persons who surprised them.

Their case has not yet come to trial.

The Cases of Florian Cristian Hanganu and Stefan Harabula, and of Gavril Bors and Mihai Tintila

Examples of men arrested for homosexual acts since the Constitutional Court's decision in 1994 indicate discriminatory punishment for trespasses in the public sphere. Human Rights Watch and IGLHRC stress again the statements of police and prosecutors that the following offenses, if committed by heterosexuals, would be unlikely to lead to arrest and detention, much less a prison term.

The central railway station of Iasi, like many other stations around Romania, is a meeting place for gay men: and Iasi police and prosecutors may possess a particular animus against them. In early June 1997, two men, Florin Cristian Hanganu and Stelian Harabula, were arrested for entering into sexual relations in a stall of the men's toilet in the station. According to prosecutors, the cleaning man in the toilet "heard a suspicious noise, looked in the keyhole, and caught the two."⁽⁶²⁾ He forcibly kept the two from leaving the stall while summoning the station police with his shouts.

In the presence of police and the prosecutor in the case, Human Rights Watch and IGLHRC also spoke to the two arrested men, who essentially confirmed this account. At the time Human Rights Watch and IGLHRC investigated the case, the two had been held in pre-trial detention for almost a month. Chief Prosecutor Varvescu stated that "it is not a case of human rights but a case of children," explaining that if released the two would "make proselytism" and corrupt street children living in the station. Neither of the two men has a prior record, and there is no reason to suspect them of sexual abuse of children. A case from 1996 of a French national who solicited street children in the Bucharest station was heavily publicized; this may explain the concern of the prosecutor for a population who, as the Constanta case indicates, infrequently experience any measure of solicitude on the part of the law. The prosecutor in the case, Constantin Crismaru, later remarked that he had wished to drop charges, but Prosecutor Varvescu insisted on pressing them.

Gavril Bors and Mihai Tintila were arrested under almost exactly identical circumstances in the Iasi station, almost exactly one year earlier, on June 5, 1996. Tintila's file⁽⁶³⁾ shows that a cleaning man surprised them in a stall of the station toilet and called the police. The court sentence cites the act as producing public scandal; both the cleaning man and the two police offices responding to the call were scandalized by what they found. Both men were sentenced to and year and six months' imprisonment under Article 200. Bors's sentence was suspended; Tintila, who resisted arrest, received an additional one year and three months for "offense to authority" and "outrage" (Articles 238 and 239), and was remanded to serve the longer sentence.

Interviewed in Iasi penitentiary, Tintila stated that when he and Bors had been in the stall for two or three minutes, police came, smashing the latch, and took them to the police post in the station. There a plutionier or junior officer insulted and slapped Tintila, who responded by running away. He was caught by a sergeant and the plutonier; after a brief altercation in which Tintila hit the two with a shopping bag, he was dragged back to the station, where he was beaten, kicked and strangled by seven or eight officers for half an hour.⁽⁶⁴⁾

Before 1996, the final paragraph of Article 200 punished "inciting or encouraging" a person to engage in homosexual relations, with one to five years' imprisonment. The new version passed in that year tacks on an additional restriction, subjecting "propaganda, association, or any act of proselytism" to the same punishment.

These two clauses deserve to be discussed separately. The first may originally have been directed at solicitation--simply approaching another person, or inviting someone to engage in sexual contact. As such it solidified in the 1968 code the idea only implicit in 1936's law, that the pursuit of so-called "clients"-- sexual partners--by homosexuals represented a social danger.⁽⁶⁵⁾ However, it also overlapped--as it still does--with Article 204, which criminalized even the attempt to engage in sexual offenses (including Article 200). As if to foreclose all loopholes, multiple laws thus penalize the open articulation of desire.

"Inciting and Encouraging: The Case of Mariana Cetiner

In 1991, Major Catalineanu--then head of the Bucharest vice squad, and a figure of terror to many gay men--told an interviewer, "In eighteen years I never compiled a file on lesbians. . . . I have never come across such a case, none ever landed on our desks."⁽⁶⁶⁾ Social and cultural barriers to women's voicing lesbian desire were severe--sufficiently so that the law rarely had to act. But the law was ready.

Mariana Cetiner, born in 1957, was abandoned by her mother and grew up in an orphanage. A sportswoman, at twelve she was transferred to a special school for athletes. Ultimately she married a Turkish citizen, and lived in Istanbul for a time. In 1994-95, she played in a handball team in the Netherlands. In August 1995 she returned to Romania, settling in the Transylvanian city of Alba Iulia. She moved into an apartment with a married woman, Elena Mihailescu; another woman who lived there, Adina Vana, "collaborated in commercial business" with Cetiner, according to the indictment. (Cetiner apparently lent her 4000 DM--about $3000.)

For asking Adina Vana to have sex with her, Mariana Cetiner would be sentenced to three years in prison. Her penal file⁽⁶⁷⁾ contains her indictment, the statements of the two "victims" who shared the apartment with her, and statements by witnesses. The indictment claims:

Due to limited space, the suspect and the victim Adina Vana were forced to sleep in the same room on several occasions, until one night when Mariana Cetiner began to reveal to the victim aspects of her intimate life, explaining at last that she was a lesbian and had had intimate relations with women in Alba Iulia, giving the names of some of these persons. At the same time she expressed the wish to enter into these relations together; letting it be known that she loved the victim and could offer a different sexual satisfaction, proposing even that they could marry in Holland, the law of which tolerates unnatural marriages. The victim refused this proposal categorically, explaining that she was a normal woman from the sexual point of view and did not approve of those who practiced homosexual relations.

The requests continued, however--fifteen or twenty times, according to Vana. Although Article 200 does not require that "incitement or encouragement" provoke a public scandal, the indictment is at pains to establish that Cetiner's behavior did so. One night events "achieved unnatural intensity and came to the knowledge of other persons," when, on an overnight trip the three women took to the mountains, the suspect experienced an "exaggerated growth of her abnormal sexual impulses," and left the room violently, throwing glasses.

Cetiner moved out of the apartment; and soon after, Elena Mihailescu, on behalf of the victim Vana, reported Cetiner to the police. It appears she carried evidence with her: the indictment notes, to prove her sentiments of love, the suspect had offered the victim her own photographs, on which she inscribed a text with contents suggestive of her intentions. On another occasion, believing it insufficient to convince the victim through verbal dialogue, she wrote "love letters" which took part in the erotic "game" of being a couple.

One morning, Cetiner appeared at the two women's door, bringing a male witness. According to this man, there was an argument: Cetiner refused to leave the apartment. Mihailescu went to a neighbor's phone to call police; while she was gone, Cetiner departed. The same day, Cetiner was arrested under the charges of Article 200, "the last paragraph,"⁽⁶⁸⁾ and for violation of a domicile (for remaining in Mihailescu's apartment).

Police also sought witnesses to confirm Cetiner's lesbian behavior. One writes,

I met Mariana Cetiner [at a party] and because I understood from the hostess that this Mariana was lesbi [sic], I showed curiosity about it, what this thing meant and whether in truth the woman in question was lesbi. So, at a given moment, profiting from her state of drunkenness, I asked her directly "whether or not she was lesbian." She responded, "Yes, I am" . . .

Cetiner's own statement to police is brief. She denies "inciting or encouraging" Vana, saying she had lent Vana money and wanted it back.

She was subjected to a number of psychiatric examinations, and was not even indicted until she had spent seven months in jail. Neither judge nor prosecutors questioned the comparative weight of the two charges against her: she was sentenced to three years under Article 200, "last paragraph," and to only six months for violation of domicile.⁽⁶⁹⁾

Cetiner appealed. Her appeal was granted--under a convoluted argument.⁽⁷⁰⁾ Although all parties had denied that any sexual contact had taken place, the appeals tribunal, without explanation, decided that "the suspect had entered into such a relation with Adina Vana after proposing it."⁽⁷¹⁾

The presumption of a sexual act created a new legal situation. "Actions of inciting and encouraging [are] absorbed in the contents of the infractions specified in Article 200, paragraph 1": instead of paragraph 5, the court contended the act fell under the first paragraph. However, the tribunal then examined the question of public scandal, finding that "none of the special conditions of incriminalization are assembled here." While "between the accused and the victim Adina Vana many scandals did take place, these occurred because Adina Vana refused to return twenty million lei" which the accused had lent her--not because of the supposed sexual relationship. By the court's tangled reasoning, Cetiner should not have been charged under paragraph 1, either. In January 1997, after serving fourteen months, Cetiner was--briefly-- freed from prison.

Prosecutors then filed a further appeal, objecting that the tribunal had misjudged the relations between the two women, as well as misunderstood the nature of public scandal. This argument was accepted by the highest local appeals court in May 1997.⁽⁷²⁾ It moved the case back under the "last paragraph" of 200, thus exonerating Adina Vana of having succumbed to Cetiner's urgings; it found that while there had been a "dispute referring to a financial matter," the main dispute had involved intimate relations, and "with certainty the condition of public scandal was fulfilled."⁽⁷³⁾ Mariana Cetiner was arrested again ten days later and began serving the remainder of her sentence.

Human Rights Watch and IGLHRC asked the chief prosecutor of Alba Iulia whether "inciting or encouraging" a person of the opposite sex to sexual relations would initiate a criminal case. He seemed surprised by the question. "It is not punishable by any means," he said. Cetiner's lesbianism he called "the hobby of a woman of dubious morality."⁽⁷⁴⁾

Human Rights Watch and IGLHRC also visited Mariana Cetiner in Tirgsor penitentiary. The conversation was supervised, by two guards who seemed determined to threaten Cetiner. She was able to communicate briefly in English, before guards stopped her. She said an officer had beaten her the day before, because she tried to file a complaint: "He handcuffed me and pulled me out of my cell by the hair. I have much to say but it is forbidden. When you leave, I will have big problems." When transferred from Aiud penitentiary in May, she said, she had spent four days on a train without food or water. "I grew up in an orphanage, that was awful, but to end up here is worse."

Cetiner had a large bruise on her right thigh, and her knee was bandaged. She attempted to show another bruise, on her side, but was afraid in the guards' presence. In Romanian, before the guards, she had little to say. She seemed confused, and repeated she had been framed because Adina Vana refused to repay a twenty million lei loan.⁽⁷⁵⁾

Human Rights Watch and IGLHRC believe that Mariana Cetiner has been physically abused in prison, and that her sexual orientation has been a factor in this abuse. Dr. Maria Anghel of the prison clinic acknowledged, "I don't try to defend the guards, but you must see she is a difficult person, perverse, not at all normal. After fourteen hours of working hard, the means a guard uses to get such a person down to quiet down may not always be the most gentle."⁽⁷⁶⁾

"Propaganda, Association, or Any Form of Proselytism"

Human Rights Watch and IGLHRC asked a number of officials what the new language in paragraph 5 prohibits. "Public scandal" has attracted the bulk of international attention: these interviews suggest that paragraph 5 comprises still more serious threats to basic freedoms of expression and assembly.

Asked, for instance, about the legality of commercial gathering places for gays or lesbians, General Paun of the General Inspectorate of Police illuminated exactly how homosexuals appear as a group to law-enforcement officials:

Any bar or office where homosexuals meet would be illegal under paragraph 5, even if no sexual activity is going to take place there. If a a bar were to declare this its purpose, the court would not grant a license: the law punishes any offense to public morals. That is why bordellos are banned: and this case would correspond exactly to the sanctions against organized prostitution. (Emphasis added)⁽⁷⁷⁾

Ana Iacovescu of the Ministry of Justice was more hopeful: "My answer is, this may be allowed with time. We have made steps in defending rights of this minority, but we may be pressing too far, too fast." Colonel Moldovan added: "Civil society is not ready for this."⁽⁷⁸⁾

Senator Ion Vasile said a private commercial establishment "would be absolutely illegal," even if no sexual activity took place there. And Deputy Vasile Lupu argued that if the establishment served people who were not gay as well as people who were, it could be cited for proselytism.

Similar responses came to questions about gay and lesbian organizations. Law 21/1924 provides that, for an organization to be legally registered, a local court, local prosecutor, and the Ministry closest to its stated scope of activities must investigate whether its statutes are compatible with existing legislation. Asked if the Ministry of Justice would approve a gay and lesbian rights organization, Ana Iacovescu wondered "whether we have reached the stage when we could accept an organization of homosexuals having legal status. I do not think so." Senator Vasile said, "I can hardly believe that they could obtain legal status. They are associations. Paragraph 5 makes associations illegal."⁽⁷⁹⁾

Magazines, publications, and public events are likewise banned. According to Deputy Emil Popescu, "If a lesbian were to go out in the streets dressed to protest, it is not certain she would get away alive. This law exists to protect her from doing so."⁽⁸⁰⁾

One of the few attempts to test the tolerance of police and prosecutors came in 1994, when an activist organized a cultural festival in Bucharest, "Together Against Homophobia and AIDS." Several Scandinavian artists and musicians agreed to perform. On its opening day--July 15, the same day on which the Supreme Court ruled that homosexual acts could be penalized "if they cause public scandal"--the director of the host theater canceled all performances, saying he had not known "the sexual inclinations of the performers and organizers."⁽⁸¹⁾

Organizers managed to reschedule the events for the next night at a casa de cultura, or municipal cultural center, in the capital. The director of the cultural house later told the press that "all of Bucharest immediately jumped on my head, from the mayor on down". He claimed he had received a call from a "high political personality" saying that if the performances took place, "in twenty-four hours the casa de cultura would be closed or demolished."

When performers and audience arrived on the night of July 16, they found the casa de cultura ringed by police, all armed and with dogs, barring entry. On order of the mayor of Sector 4 in Bucharest, "to protect public morals," the festival was shut down.⁽⁸²⁾

There has never been an openly gay bar in Romania.⁽⁸³⁾

However, in the summer of 1996, an outdoor cafe owned by a gay man opened in a secluded part of Herastrau Park in Bucharest. Many gays frequented it. One night in November, it was raided by five men who assaulted the customers and destroyed windows, furniture, and equipment. Police at a nearby station were alerted; they refused to intervene and reportedly laughed at the possibility of physical danger to customers.⁽⁸⁴⁾

The bar shut down not long after. Its owner, interviewed by Human Rights Watch and IGLHRC, said, "There cannot be an openly gay bar here, and there cannot be a bar that is just for gays."⁽⁸⁵⁾

Similarly, there has never been a legally registered gay/lesbian NGO in Romania, and no group has dared to test the limits. ⁽⁸⁶⁾ ACCEPT, a human-rights group of gays, lesbians, and their supporters, sought legal registration in 1996. A lawyer advised them that, even under the old version of Article 200, if their registration papers explicitly mentioned "sexual minorities" or homosexuality, both the Ministry of Justice and the court would see it as "an encouragement of crimes." ⁽⁸⁷⁾

All such references were deleted, and ACCEPT registered as a general human-rights organization in October 1996.

In early 1997, the Concordia Foundation--a nonprofit cultural foundation--applied for registration to the Municipal Court of Bucharest. Its statutes committed it to defend "cultural communities (ethnic, linguistic, religious) in Romania," and to "combat intolerance in all its forms (homophobia, xenophobia, racism.)" The court decided in their favor, but the prosecutor's office appealed, arguing that the term "cultural community" was unclear and that the forms of intolerance listed were inappropriate. Orally, he instructed the group to remove "homophobia" from the statutes.⁽⁸⁸⁾

Since homosexuality has at best been incompletely decriminalized in Romania, one cannot properly speak of an "age of consent" for homosexual acts. However, paragraph 2 of Article 200--which punishes "the act of an adult having sexual relations with a minor of the same sex" with two to seven years' imprisonment "and denial of certain rights"--is discriminatory in two ways.⁽⁸⁹⁾

Both the description of and the punishment for the act are inequable. A minor in Romanian law is any person under eighteen. However, the corresponding provision covering heterosexual acts, Article 198--"sexual relations with a minor girl"--punishes only "sexual relations with a person of the feminine sex under the age of fourteen". The penalty, one to five years in prison, is substantially smaller.⁽⁹⁰⁾

Nicula Stelian's case illustrates concretely what these distinctions can mean. Stelian was eighteen when arrested in his village in southeastern Romania. A young man named Nicusor T., whom he described as "effeminate," had shown some interest in him in the past, always trying to spend time with him. Nicusor T. was seventeen, one year behind Stelian in school.

In August 1993, Stelian told IGLHRC representatives, the two left a dance in the village, both a little drunk. They went into the hay in a yard behind a house; Stelian opened his pants and they had oral sex. The incident was never repeated.

In the next month, however--three or four weeks later--Stelian was arrested by the police. He believes that Nicusor T. had confessed to his mother, who had complained to the police.

Stelian was taken to the village police post and severely beaten. Two police officers, calling him a "pederast," hit him on the chest with their fists, and kicked him on the legs repeatedly. He showed IGLHRC representatives scars on his shins which he said were from the beatings: after several months, there were still perceptible indentations on his flesh. The beatings continued for several hours, till he wrote down the statements they dictated for him.

He was released, but arrested again in October, and spent thirty days in pre-trial detention. Stelian says that when he met the prosecutor, the latter told his assistant to write down Article 200, paragraph 1 in the arrest warrant. The assistant said, "No, paragraph 2--we only write paragraph 2 now." The slight difference in his age and Nicusor's enabled the crucial change.

Stelian remembers the judge at the trial saying that "this case should not justify imprisonment": he seemed to consider granting a suspended sentence. The prosecutor in arguments stressed that Stelian had engaged in sexual relations with a minor. He was sentenced to three years under Article 200, paragraph 2.⁽⁹¹⁾

1. ¹ Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, "Draft opinion on the application for membership to the Council of Europe submitted by Romania," appendix II, AS/Jur (44) 74, Strasbourg, August 17, 1993. See also AS/Pol 44(62), Strasbourg, May 7, 1993.

2. ² Daniel Uncu, "La ordinea zilei in Senat: proxeneti, prostituate, homosexuali, lesbiene, si SIDA." Romania libera, February 7, 1993; and Tudor Octavian, "Senatorul Tatu si problema preacurviei," Romania libera, February 15, 1993. See also Abafai F. Istvan, "Andras Imre kepviselo: nem a tiltas a megoldas," Orient expressz, March 12, 1993.

3. ³ Nicolae Veres, "Domnul Konig, homosexualii, si . . . noi," Adevarul de Cluj, May 15-17, 1993.

4. ⁴ Roxana Costache, "Dl. Coposu combate aberatiile sexuale," Libertatea, May 18-19, 1993.

5. ⁵ Tana Cafrita, "Homosexualii se pot organiza in asociatia fara a fi pedepsiti de lege," Evenimentul zilei, April 6, 1993.

6. ⁶ Council of Europe, Parliamentary Assembly, Doc. 6901, Amendment No. 7, September 27, 1993. Amendment No. 8 also required that Romania "shortly change its legislation in such a way that . . . Article 200 of the penal code will no longer consider as a criminal offense homosexual acts perpetrated in private between consenting adults."

7. ⁷ The 1968 code paragraph 5 had criminalized "incitement or encouragement" only to the acts in paragraph 1, omitting incitement to the acts specified in the intervening paragraphs.

8. ⁸ Decizia nr. 81, Curtea Constitutionala, July 15, 1994.

9. ⁹ Survey by the Quality of Life Institute at the Romanian Academy. In "Homosexuals: premises of their acceptance in today's Romania," unpublished paper by Catalin Augustin Stoica.

10. ¹⁰ Interview by Daniel Iorga, Scott Long, and Bogdan Voicu with Deputy Nicolae-Florin Tudose, July 1997.

11. ¹¹ In its deliberations in 1994, the Constitutional Court had polled the officially recognized religions; all declared themselves against any amendment, with the sole exception of Bishop Laszlo Tokes of the Hungarian Reformed Church, who distinguished between the spheres of religious dogma and political decisions. Decizia nr. 81, Curtea Constitutionala, July 15, 1994.

12. ¹² Ion Zubascu, "Patriarhul Romaniei condamna legiferarea homosexualitatii," Evenimentul zilei, December 16, 1993.

13. ¹³ Homosexualitatea: propaganda a degenerarii umane, pamphlet produced by ASCOR, 1995.

14. ¹⁴ Interview by Vera Campeanu and Scott Long with Deputy Dan Martian, 1997.

15. ¹⁵ Interview by Scott Long and Bogdan Voicu with Chief Prosecutor Vasile Luha, Alba Iulia, 1997.

16. ¹⁶ Interview with Deputy Nicolae-Florin Tudose, July 1997. An discussion with three officials from the Ministry of Justice revealed that even there some confusion remains about the official status of the Orthodox Church, with one maintaining that Romania has an "official religion," and another stating (correctly) that the majority church is only one of the officially recognized churches, which at least in principle retain formal equality: interview by Vera Campeanu and Scott Long with Ana Iacovescu (Director of International Legal Relations), Cristina Lazarescu, and Colonel Radu Moldovan, Ministry of Justice, June, 1997.

17. ¹⁷ Valentin Zaschievici and Cosmin Barbii, "Crimele oribile comise in ultimul timp in mediul homosexualilor ingrozesc Bucurestiul," Libertatea, November 9, 1995. See also (among others) Miruna Munteanu, "Crimele comis de homosexuali," Zeghea, August 13-19, 1996; "Oameni din umbra societatii: homosexualii," Romania libera, March 2, 1996; and "Homosexualii la Paris si la Bucuresti," Zig Zag, May 1993--all full-page spreads devoted to supposed "homosexual crimes." Soon an entire book on "rapes and homosexual murders," allegedly written by a former prosecutor, appeared: Ion Argesanu, Atentie! Violatori si homosexuali ucigasi! Oscar Print, Bucuresti, 1995.

18. ¹⁸ Interview by Vera Campeanu and Scott Long with Deputy Gheorghe Stancov, Judiciary Committee, Chamber of Deputies, June 1997.

19. ¹⁹ Nicolae Corbu, "Sex si politica," Ultima ora, spring 1993.

20. ²⁰ "Isabelle si homosexualitatea," Mesagerul, July 3, 1993. Deputy Emil Teodor Popescu, interviewed by Vera Campeanu and Scott Long in June 1997, expressed nostalgia for an era when all borders--national as well as psychological--were sealed against transgressions and foreign influences: "Communism was very bad, but it had positive effects: pornography, drugs, rock music, AIDS, homosexuality were not seen or discussed and were eliminated from the start."

21. ²¹ Peter Humphrey, "Gay Rights Cause Uproar in Romanian Parliament," Reuters, November 11, 1993.

22. ²² It is worth noting that only deputies from Petre Roman's opposition Democratic Party (FSN) dared produce a legislative proposal, formally introduced in 1993, that would have eliminated Article 200, paragraph 1 altogether. The proposal rapidly died.

23. ²³ Letter to Scott Long from Mona Nicoara of the Romanian Helsinki Committee, October 16, 1994.

24. ²⁴ Interview by Campeanu and Long with Dan Martian, June 1997.

25. ²⁵ Emil Teodor Popescu, quoted in Lia Bejan and Dragos Moldovan, "Presa n-a scapat de inchisoare," Adevarul, 11 September 1996.

26. ²⁶ Both quoted in Aura Alexa Ioan, "Cea mai aberanta pledoarie!", Tinerama, September 17-23, 1996.

27. ²⁷ Amnesty International Index: Eur 39/WU 02/94

28. ²⁸ "Rezumatul sedintei Comisei Juridice a Camerei Deputatilor din 04.27.94": notes taken by representatives of the Romanian Helsinki Committee. The General Prosecutor's office defined the term for the same committee (without citing a precedent) as "the circumstance of the act becoming known to three people who show disapproval."

29. ²⁹ Valerian Cioclei, Viata sexuala si politica penala, Bucuresti, Editura Holding Reporter, 1994, p. 91. A recently published dictionary of useful legal terms (co-authored by the head of the General Inspectorate of Police--IGP) devotes an entry to "homosexuality," a word nowhere mentioned in the penal code, but none to "public scandal": Dr. Ion Pitulescu, Dr. Pavel Abraham, Emil Dersidan, and Ion Ranete, Dictionar de Termeni Juridici Uzuala, Explicativ-Practic, Bucuresti, Editura National, 1997.

30. ³⁰ Interview by Scott Long and Bogdan Voicu with Vasile Luha, July 1997.

31. ³¹ Interview by Vera Campeanu and Scott Long with Senator Peter Eckstein, June 1997.

32. ³² Interview by Vera Campeanu and Scott Long with Emil Teodor Popescu, Chair, Judiciary Committee, Chamber of Deputies, June 1997.

33. ³³ Interview by Vera Campeanu and Scott Long with Gen. Ovidius Paun, IGP, June 1997.

34. ³⁴ Interview by Vera Campeanu and Scott Long with Senator Ion Vasile, June 1997.

35. ³⁵ Interview by Daniel Iorga, Scott Long, and Bogdan Voicu with Capt. Tudor Cojocaru, Brasov, July 1997. In 1995 the Constitutional Court had already pronounced its decision legitimating the "public scandal"language, though its legal force was uncertain. Human Rights Watch and IGLHRC were unable to obtain access to the file on this case in the judecatoria in Brasov.

36. ³⁶ Interviews by Campeanu and Long with Senator Vasile, and with Ana Iacovescu, June 1997.

37. ³⁷ Interviews by Campeanu and Long with Paun and Lupu, June 1997; interview by Long and Voicu with Luha, July 1997.

38. ³⁸ Interview by Scott Long with Capt. Dorel Andras, Timisoara Police, May 1994.

39. ³⁹ Interview with Luha. Acting Chief Prosecutor Evgenia Varvescu in Iasi claimed that "the public is in fact more repressive and severe than the authorities, since it is grounded in Christian Orthodox morality." Interviewed by Scott Long and Bogdan Voicu, June 1997.

40. ⁴⁰ Sentinta penala 02.03.1993, cazul Radu Alexandru, Tribunal Militar, Bucuresti. Most of the officials IGLHRC and Human Rights Watch interviewed found this an unacceptable procedure.

41. ⁴¹ Interviews with Luha and Varvescu; interviews by Vera Campeanu and Scott Long with prosecutor Mariana Vutcovici, and with Colonel Ioan Cirlic, Constanta, June 1997.

42. ⁴² Interview by Vera Campeanu and Scott Long with Mariana Valeriana Stoica, President, Parliamentary Committee for European Integration; and with Cristina Lazarescu, Ministry of Justice, June 1997.

43. ⁴³ Interview by Scott Long and Bodgan Voicu with Assistant Chief Prosecutor Ilie Costica, Braila, 1997. In practice, power in the Romanian judicial system is concentrated in the prosecutor rather than the judge: prosecutors approve and direct investigations, achieve a conviction rate of over 95 percent, and often see their bills of indictment transformed unedited into penal sentences. Hence prosecutors (who, based on Human Rights Watch's and IGLHRC's interviews, seem to interpret "public scandal" more broadly even than many legislators) are likely to have the predominant influence in any future jurisprudence.

44. ⁴⁴ Interviews with Iacovescu and Popescu. Popescu, who is now the chair of the Judiciary Committee in the Chamber of Deputies, and who over the last three was years one of the most vociferous opponents of reforming Article 200--appearing in many programs and publications sponsored by the Orthodox Church--was anxious to present himself as more moderate in a meeting with Human Rights Watch and IGLHRC in June 1997 . He even contended, "This law helps homosexual couples. For it will encourage heterosexual couples to have more children. And later, when Romania is ready for such a thing, homosexual couples can adopt those children--which will be a favor to them, because homosexuality is essentially sterile."

45. ⁴⁵ Interview with Iacovescu. Since 1993, the phrase "public scandal" has been widely disseminated in Romania; prosecutors often invoked it, as a precautionary measure, in Article 200 cases initiated well before the new law passed. However, several cases show that some prosecutors are unaware (even after the final promulgation of the law) that "public scandal" delimits only paragraph 1; they summon up the language in cases involving other paragraphs, with the curious result that even homosexual rape must be found to produce "public scandal." (The ease of doing so, of course, suggests again the elasticity of the term.) In one case under Article 200, paragraph. 3 (rechizitoriu 28/P/1997, dosar 291/1997, judecatoria Teleorman), in which a rape was committed outside a restaurant, the prosecutor finds "acts of homosexuality committed by force upon the victim, which produced public scandal. That these acts produced public scandal is proven by the declarations of witnesses, who observed on that evening that persons in the restaurant were revolted, and again in following days when the act committed was discussed in the town." (It is also telling that, though the act was committed in a juridically public place, the prosecutor preferred to discover a cause of "public scandal" in it--indicating again that the judicial sense of what is "public" space remains vague.) Cf. the appeals court decision in the case of Mariana Cetiner, below. In another case, a pre-trial detention mandate from 1994 shows a prosecutor declaring that the suspect, "through threats, entered into unnatural sexual relations with G.C. [a minor], provoking public scandal"--although the qualification may come because the prosecutor has marked the case as Article 200, paragraph 1, instead of paragraph 2, which refers to homosexual relations with minors (Dosar no. 7351/1994, judecatoria Iasi). a curious indifference exists on the part of many law-enforcement officials to the fact that Article 200 is divided into different paragraphs with different meanings.

46. ⁴⁶ a term that would cover both bodily autonomy and a sphere devoted to intimate relations certainly does not exist. Particular carries a strong sense of owned personal property; privat is generally applied to private businesses or clubs. (Both terms are used as such in the penal code, and indeed the development of terminology to express private property was a significant post-Revolutionary legal concern.) The latter term occurs, in a sense probably still inflected with connotations of property, in Article 26 of the 1991 Constitution, which protects "intimate, family, and private life," as well as "the right [of a physical person] to dispose of his/her self, if it does not interfere with the rights and liberties of others, public order, or good morals." This, the strongest statement on privacy rights in Romanian law, does not address a persisting disequilibrium: that the penal code defines "public" in terms of spaces, while the Constitution identifies privacy more vaguely as consisting of "intimate, family, and private" spheres.

47. ⁴⁷ It was of course not meant to offer such restrictions: the definition was necessitated by the fact that "commission in public" was an aggravating circumstance in a number of crimes, including theft (Article 209) and robbery (Article 211), and was a condition for slander (Article 206). The notion of limiting the definition of the public against a purely theoretical private sphere would have been meaningless in 1968.

48. ⁴⁸ Interview with Iacovescu, Lazarescu, and Moldovan, June 1997. Interestingly, Law 61/1991 deals in parallel articles with the crime of solicitation for prostitution when committed in "parks and streets" and when committed in "hotels, motels, campgrounds, bars, restaurants, clubs, pensions, discotheques"--indicating the latter places all have an ambiguously but at least partly public status.

49. ⁴⁹ Interview with Stancov, June 1997. Some officials reacted with disbelief, probably indicating that such offenses are simply overlooked. Captain Cojocaru , "I have never seen such a case in my life, and I cannot imagine that it happens."

50. ⁵⁰ Interview with Stancov, June 1997.

51. ⁵¹ Including prosecutors in Iasi, and Captain Cojocaru in Brasov. Under Ceausescu the law was titled "Hooliganism" and was a catch-all for any form of anti-social behavior the state wished to discourage.

52. ⁵² No one asked by Human Rights Watch and IGLHRC mentioned Article 201--punishing "acts of sexual perversion which cause public scandal"--as one that could be applied against heterosexual public sex, and it seems unlikely that it would be.

That said, "sexual perversion" is another elastic term, defined in the article as any "unnatural act in connection with sexual life" not covered in Article 200. The way the article is employed in practice illustrates the irrational vagueness still clouding the criminalization of sexual offenses in Romania. It is sometimes used against consensual homosexual acts--particularly against oral sex between men; apparently the understood distinction is that anal sex, imitating as it does penetrative heterosexual sex, is a "sexual relation," whereas oral sex is merely a "sexual perversion." However, this is not a universal understanding; sometimes oral sex slips back under Article 200, and sometimes anal sex is described as "sexual perversion," depending on the whims of police, prosecutor, or judge. In one characteristic case, in which the suspect was accused of both anal and oral sex, the prosecutor's indictment first charged him solely under Article 201; the final sentence, though, moved his case back entirely under Article 200. (Rechizitoriu 172/P/1995 and sentinta penala 25/1996, judecatoria Chisinau Cris.)

In practice, it would appear that only paragraphs 2 and 3 of Article 201 are enforced against heterosexuals--and here a more serious discrepancy appears: those paragraphs deal with "sexual perversion" when forced, or committed against a minor. Essentially, rape, real or statutory, in Romanian law means vaginal intercourse and is punished under Article 197; other forms of forced sexual acts between a man and a woman fall under 201--which is now the main use of that law. There, the punishment is lighter in a number of ways; in particular, the punishment for performing oral sex on a minor is two to seven years, while raping a minor carries ten to twenty; and Article 201 has no provision for the participation of more than one person (which boosts the penalty to five to fifteen years under Article 197). Two separate cases of gang rape (sentinta penala 179/1996, judecatoria Galati; and sentinta penala 1948/1995, judecatoria Tirgu Jiu) show that participants who forced oral sex on the victim received significantly lighter sentences than those who committed (or, in the second case, merely attempted to commit) what one indictment calls "sexual relations with the victim by the normal means." Moreover, the language of 201 means that forced oral sex must "produce public scandal" before it can be punished! In one case where a man abducted and raped a six-year-old girl, a court must thus go out of its way to find that "his act of kissing the minor in the pubic area" produced public scandal "inasmuch as it was overheard by the witnesses in the case" (Curtea de Apel, Constanta, decizia no. 15, February 22, 1995). These absurd dispositions indicate again that a thorough rethinking of, and purging of equivocations from, the laws on sexual offenses is long overdue.

53. ⁵³ Interview by Scott Long and Bogdan Voicu with criminal prosecutor Ioan Ciofu, Iasi, June 1997. An approximate translation of the term would be "buttfuckers."

54. ⁵⁴ In a system where judicial review is a novel concept, the exact weight of the court's decision is debatable. On one hand, a May 24, 1995 letter to Amnesty International from Lieutenant General Ion Pitulescu, of the Romanian Ministry of the Interior, stated that 113 prosecutions against homosexuals during 1994 and early 1995 were undertaken "only when their acts resulted in public scandal, as specified by the Romanian penal code"--this referring to a period mainly falling before the court's decision was published in Monitorul Official, on 25 January 1995, and thus reflecting a remarkably prophetic expression of obedience. ("Romania: Amnesty International Refutes Allegations of Inaccuracy," AI Index: Eur 3911/95.) On the other hand, Captain Cojocaru of the Brasov police told Human Rights Watch and IGLHRC in July 1997 that, the court's decision was--from the perspective of the police--only a "recommendation"; parliament alone could enact decisions with the force of law.

55. ⁵⁵ General Paun of the IGP told Human Rights Watch and IGLHRC that three new prosecutions had been undertaken under Article 200, paragraph 1 between January and May, 1997. Human Rights Watch and IGLHRC themselves are aware of four. It is likely that there have been still others.

56. ⁵⁶ This account is based on interviews by Vera Campeanu and Scott Long with the prosecutor and the accused, in June 1997. a short account of the arrests, based on information released by the police during the investigation, appeared in a national newspaper: Lizeta Anton, "Doi minori si un adult faceau sex oral," Evenimentul zilei, May 30, 1997.

57. ⁵⁷ Under arrest, Murariu confessed that he had sex with another homeless man living there: the prosecutor told Human Rights Watch and IGLHRC that investigators were looking for this person as an additional suspect, but that Murariu had refused to give his name.

58. ⁵⁸ Interview by Vera Campeanu and Scott Long with prosecutor Mariana Vutcovici, Constanta, June 1997.

59. ⁵⁹ Representatives of IGLHRC visited Iasi in September 1996 and interviewed Radu Vasiliu and Gabriel Presnac, along with members of their family, Major Bodea of the judetean police, and Major Barlica, commandant of the municipal poilce. Human Rights Watch and IGLHRC returned in June 1997 to speak to Radu Vasiliu; Gabriel Presnac's grandmother; the lawyer for the accused, Aspasia Boia; and officials in the prosecutor's office. This account is based on those interviews.

60. ⁶⁰ He was born on November 16, 1978.

61. ⁶¹ Interview by Scott Long and Bogdan Voicu with Aspasia Boia, Iasi, June 1997; see also dosar nr. 5806/1996, judecatoria Iasi.

62. ⁶² The case was reported in a small note in Evenimentul zilei, June 5, 1997. Human Rights Watch and IGLHRC spoke in June 1997 to Acting Chief Prosecutor Evgenia Varvescu of Iasi, as well as to Constantin Crismaru, the prosecutor in the case.

63. ⁶³ Dosar penetenciar 63/1996, Iasi; sentinta penala 3759/96, judecatoria Iasi.

64. ⁶⁴ Interview by Scott Long and Yves Nya Ngatchou with Mihai Tintila in Iasi penitentiary, June 1997. In a similar case documented by the Romanian Helsinki Committee, Catalin Bucur and Stefan Ciocirlan were arrested by police in Focsani on July 4, 1995. Bucur, who was seventeen, told the Committee that--while waiting for a train to take him to the orphanage where he lived--he took a walk in Focsani and, in a park in the night, met Ciocirlan. Shielded behind bushes, they masturbated. Police and public guards caught them as Bucur was zipping his fly, while Ciocirlan, fully dressed, lay on the ground. Bucur states that police immediately told one of the public guards to "go fetch three civil witnesses." The witnesses were duly produced and were duly scandalized. Although a new text of Article 200 had not yet been adopted, police evidently felt it important to meet the "public scandal" requirement--yet again indicating confusion on the part of law-enforcement officials between the two conditions imposed by the Constitutional Court. They were charged under Article 200. Interview by Ion Iacos and Manuela Stefanescu of the Romanian Helsinki Committee with Bucur in Focsani Penitentiary, 1995. The Romanian Helsinki Committee has not been able to trace the ultimate disposition of Bucur's and Ciocirlan's case.

65. ⁶⁵ The only remotely equivalent provision covering heterosexuals is again in Law 61/1991, paragraph 6--which punishes (with a fine) solicitation for prostitution.

66. ⁶⁶ Interview with Catalineanu by Camelia Doru, "Si politistii sint oameni . . ." Opinia medicala, no. 21/1991, August 29-September 14, 1991.

67. ⁶⁷ Dosar no. 3223/1996, judecatoria Alba, rechizitoriu no. 2516/P/1995. Copies of these documents are on file with Human Rights Watch and IGLHRC.

68. ⁶⁸ Prosecutors did not specify the number, knowing that what was then paragraph 4 of Article 200 would become paragraph 5 if the version under debate passed--which seemed likely to happen before a trial.

69. ⁶⁹ Sentinta penala no. 715/1996, jud. Alba; the two sentences were combined for a total of three years.

70. ⁷⁰ Decizia penala no. 12/a/1997, January 13, 1997, Tribunalul Alba. Elena Mihailescu had in the meantime withdrawn her complaint against Cetiner for violation of domicile.

71. ⁷¹ In her original statement to police, Vana had been justifiably anxious to stress that her relations with Cetiner were not sexual--lest she be arrested as well: however, she records that "In the time I stayed with the Mihailescu family I slept with [Cetiner] at most two or three nights but since we were in the presence of Mrs. Mihailescu she did nothing more than kiss me on the neck, the face, and the back, caress me on the breasts, and other gestures of the same sort. Mrs. Mihailescu also slept in the same room." The tribunal may well have found that these gestures constituted "sexual relations" between women--particularly given the continuing uncertainty, in Romanian law, surrounding exactly how "sexual relations" are to be defined.

72. ⁷² Dosar nr. 731/1997, decizia penala no. 166/1997, Curtea de Apel Alba Iulia, May 6, 1997.

73. ⁷³ In the process implicitly accepting the argument, nowhere made before, that paragraph 5--which does not mention public scandal--is still qualified by it; indicating at least a somewhat cavalier indifference to precision.

74. ⁷⁴ Interview by Scott Long and Bogdan Voicu with Luha, July 1997.

75. ⁷⁵ Interview by Scott Long and Bogdan Voicu with Mariana Cetiner, Tirgsor Penitenciary, July 1997.

76. ⁷⁶ Interview by Long and Voicu with Maria Anghel, Tirgsor penitentiary, July 1997. Most guards and staff at Tirgsor are men. Members of the mission were able to speak briefly to inmates who described how--during a hunger strike throughout the prison system in the spring--guards entered the recidivists' ward and beat the women in their beds. When the strike broke, the strikers were taken outside and made to crawl face down across a field while guards beat them.

77. ⁷⁷ Interview by Campeanu and Long with Gen. Paun, June 1997.

78. ⁷⁸ Interview by Campeanu and Long with Iacovescu, June 1997.

79. ⁷⁹ Interview by Campeanu and Long with Sen. Vasile, June 1997.

80. ⁸⁰ Interview by Campeanu and Long with Deputy Popescu, June 1997.

81. ⁸¹ Bogdan Tiberiu Iacob, "Teatrul 'Ion Creanga' a anuntat ca nu va mai permite desfasurarea pe scene sa a Festivalului 'Gay & Lesbian,'" Tineretul liber, July 15, 1994.

82. ⁸² Cristina Sofronie and Bogdan Iacob, "Artistii europeani au facut cale intoarsa . . ." Tineretul liber, July 18, 1994; Catalina Ciutac, "Festivalul International al Homosexualilor si Lesbienilor," Evenimentul zilei, July 18, 1994; Eric Kubista, press release from Kom Ut, Sweden, July 20, 1994.

83. ⁸³ Gays in Bucharest usually informally colonize a few bars or cafes near the main cruising area, the Opera Park. Owners who realize what is happening often try to drive them out: representatives of Human Rights Watch and IGLHRC witnessed gay men refused service and harassed at a terrace near the Opera Park over several nights in June 1997.

84. ⁸⁴ Interview by Scott Long with Daniel Iorga, July 1997.

85. ⁸⁵ Interview by Scott Long with "Razvan," June 1997.

86. ⁸⁶ Surveillance of gay and lesbian circles, and any more formal groups that arise, is probably extensive--as a case in Baia-Mare, in the next chapter, indicates. A Cluj student, who in 1993 was asked (in a private residence) to translate materials that a fledgling gay organization in Bucharest could distribute, was summoned within hours by the local branch of the SRI (the former Securitate or Ceausescu-era secret police); he was told that he was "cooperating with an alliance of homosexuals and Hungarians who want to destroy the Romanian state." Interview by Scott Long with Horatiu R., March 1993.

87. ⁸⁷ Interviews by Scott Long with Adrian Coman and Ion Iacos, June 1997.

88. ⁸⁸ Interview by Yves Nya Ngatchou with Florin Buhuceanu of Fundatia Concordia, July 1997.

89. ⁸⁹ Under Article 200 in its 1968 version, paragraph 2 also included homosexual rape, imposing the same punishment of two to seven years--with the resultant and surely unintended peculiarity that homosexual rape was punished more lightly than heterosexual rape (liable to three to ten years' imprisonment under Article 197). This has now been corrected; in a separate paragraph 3, homosexual rape receives three to ten years.

However, "denial of certain rights" was added as a punishment in 1996 to paragraphs 2-4 of Article 200. As specified in Article 64 of the penal code, this can include the denial, after a penal sentence has been served, of the right to vote, the right to occupy a government post, the right to practice certain other occupations, and parental rights. In a further instance of discrimination, these punishments cannot be imposed when the corresponding acts are committed in a heterosexual context (as provided in Article 197 and 198).

90. ⁹⁰ Romanian law provides no age of consent for males in a heterosexual relationship.

91. ⁹¹ Dosar no. 3256/1993, judecatoria Urziceni; interview by Scott Long and Yves Nya Ngatchou with Nicula Stelian in Poarta Alba penitentiary, January 1995.