Legal situation

11/12/2005
Submitted by Svyatoslav Sementsov

The Soviet and post-Soviet policies toward homosexuals in Belarus may be divided into five key periods:
1919-1933: decriminalization of homosexuality, relative tolerance, homosexuality officially labeled a disease.
1934-1986: homosexuality recriminalized and severely dealt with by prosecution, discrimination and silence.
1987-1990: beginning of open public discussions of the status of homosexuality from a scientific and humanitarian point of view by professionals and journalists.
1990 - February 1994: gay men and lesbians themselves take up the cause, putting human rights in the forefront, resulting exacerbation of conflict and sharp politicisation of the issue.
1 March 1994: decriminalisation of homosexuality; the homosexual underground begins to develop into a gay and lesbian subculture, with its own organizations, publications, and centres; continued social discrimination and defamation of same-sex love and relationships.
Currently acting criminal legislation

Homosexuality was decriminalized for the first time in 1994. The Criminal Code in force at the moment in Belarus was passed in 2000. The only homosexual acts that remain crimes are those that violate the consent of the sexual partner.

The crimes of homosexuality are covered in Chapter 20 (Section VII) of the Criminal Code, the chapter dedicated to “crimes against sexual inviolability or sexual freedom”. Article 167 covers "forced actions of a sexual character":

Muzhelozhstvo [man lying with man], lesbianism or other actions of a sexual character committed by use of force or threat thereof against the victim, or by exploiting the victim's vulnerability, are punished by deprivation of freedom from three to seven years.
The same actions, if they are committed several times or by a person previously convicted of rape, or by a group of persons, or wittingly against an underage person, are punished by deprivation of freedom from five to twelve years.
Actions which are foreseen by the first or second parts of the present Article if they are committed wittingly against a person under fourteen years old, or carelessly brought about the death of a victim, or carelessly inflicted heavy damage to his/her health, caused HIV infection or some other heavy consequences, are punished by deprivation of freedom from eight to fifteen years.
Article 168 provides that sexual intercourse, muzhelozhstvo, lesbianism, or other actions of a sexual character, wittingly committed by a person over 18 on a person under 16, except the crimes foreseen by the articles 166 and 167 of this Code, are punished by arrest up to six months or limitation of freedom up to three years or deprivation of freedom up to four years.

Article 170 on "Coercive acts of a sexual character" states that:

Coercion of a person into sexual intercourse, muzhelozhstvo, lesbianism or other actions of a sexual character 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 limitation of freedom up to three years or deprivation of freedom on the same terms.

The same action, if it is committed wittingly against an underage person, is punished by limitation of freedom up to four years or deprivation of freedom up to five years.

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 age of legally relevant consent for participation in sexual acts is equal for homosexual and heterosexual acts: 16 years old.

The legislation contains no laws that refer specifically to perpetrators of crimes motivated by homophobia. In the Criminal Code, homosexuals are only singled out when they are the “subjects” of a crime (e.g., when they are the perpetrators), and not when they are “objects” (e.g., victims of a crime). Judicial and police organs do not express any eagerness to collect evidence about the homophobic motives of those who perpetrate crimes. Judges are not obliged to consider such motives as aggravating the circumstances of guilt, or to impose more severe punishments when homophobic motives are present.

DISCRIMINATORY POLICE PRACTICES

Discriminatory attitudes of police officers towards sexual minorities are no different from discrimination against any other minorities.

Until now, no information has been collected on cases of homosexual victims of police violence and arbitrariness. Individual cases provide evidence indicating the presence of the following discriminatory practices:

Police officers seek information of a personal nature about homosexual persons who are victims of violence. This information is of no relevance to the prosecution of the crimes against those victims.

Police officers refuse to register cases of brutality committed against representatives of sexual minorities and do not conduct investigations that would seek criminal responsibility from the perpetrators of crimes motivated by homophobic prejudice. The passive behavior of the police is an expression of the state’s desire to ignore and to not protect the violated rights of homosexuals.

Police have conducted unprovoked actions in bars frequented by homosexuals.

CRIMES MOTIVATED BY HOMOPHOBIA
Belarusian legislation contains no laws that refer specifically to perpetrators of crimes motivated by homophobia, despite the fact that the Council of Europe considers homophobia to be equivalent to racism. In the Criminal Code, homosexuals are only singled out when they are the “subjects” of a crime (i.e. when they are the perpetrators), and not when they are “objects” (i.e. victims of a crime).
Judicial and police organs do not express any eagerness to collect evidence about the homophobic motives of those who perpetrate crimes. Judges are not obliged to consider such motives as aggravating the circumstances of guilt, nor to impose more severe punishments when homophobic motives are present.

MARRIAGE AND DOMESTIC PARTNERSHIP IN BELARUSIAN LAW
Marriage

In different societies and epochs the legal arrangements related to marriage have changed. This particularity must be kept in mind during any analysis of domestic family law and every attempt to reform family relations.

In Belarus, as in most countries of the world, marriage is a specific civil contract, concluded before a state organ and available to two persons of the opposite sex. This final requirement makes marriage inaccessible to homosexual couples.

According to the Constitution (Article 32) and the Marriage and Family Code (Articles 1 and 12), marriage is a specific civil contract, concluded before a state organ and available to two persons of the opposite sex. This final requirement makes marriage inaccessible to homosexual couples.

Section II. Article 32 states: “...On reaching the age of consent women and men shall have the right to enter into marriage on a voluntary basis and start a family..."
Section VIII. Article 140 states: "...Sections I, II, IV, VIII of the Constitution may be reconsidered only by means of a referendum..."

Domestic partnership in Belorussian law

Although the existing conservative model of marriage does not satisfy society, and although many people live together outside of marriage, Belarusian legislation still does not recognize domestic partnerships as a status that gives rights and responsibilities to its parties. For this reason, partners see no changes in their personal or material relations when they decide to cohabitate outside of marriage.

Domestic partnership is not a legal basis for one partner’s changing his or her surname. It does not lead to spousal material commonwealth between the partners. Among the responsibilities taken on by the partners in their life together, the only ones legally enforced are those listed in the civil law. When they have a common business, their relations are regulated by the rules of commercial law. If they break up, the partners have no access to the legally recognized rights of a spouse in a divorce. Current and former partners in cohabitation have no right to alimony or financial support.

Cohabitation is not a legal basis for inheritance, since partners are not included in the legal circle of heirs. Therefore, domestic partners may inherit from one another only when there is a last will and testament. The taxes on such an inheritance are higher than the taxes imposed on inheritances received by a legal spouse. Domestic partners inheriting through a will also have no right to a preserve part of the estate.

Cohabitating partners have no parental rights over the children of the other partner. It is possible, however, for one partner to legally adopt the other’s biological children. The adoptive parent must not be legally incapacitated, must not have been stripped of his or her parental rights by the courts, and must be at least 16 years older than the adopted child. It is not possible for cohabitating couples to adopt orphans, since the law requires adoptive couples to be married.

Labour Law

The Labour Code (Article 14) prohibits discrimination in the sphere of labour relations. However, sexual orientation is left out of the list of social characteristics on whose basis discrimination is legally prohibited. In other words, victims of discrimination on the basis of sexual orientation have no right to protection.

PROTECTION FROM DISCRIMINATION BASED ON SEXUAL ORIENTATION IN BELARUS
As of late June 2002, Belarusian legislation contains one constitutional provision against discrimination, as well as a few anti-discrimination provisions in other individual laws. There is no special law for equal opportunity or against discrimination. Sexual orientation is left out of the list of social characteristics on whose basis discrimination is legally prohibited. In other words, victims of discrimination on the basis of sexual orientation have no right to protection.

The CONSTITUTION of 1994
The currently effective Belarusian Constitution of 1994 proclaims that one of its fundamental principles is the equality of citizens.
Article 22 states: “All are equal before the law and have the right to equal defense… without any discrimination.”
The Constitution does not describe the social characteristics on whose basis discrimination is prohibited. In other words, in cases of discrimination on the basis of sexual orientation, the law provides no protection to victims.
Other anti-discrimination laws

As of late June 2002, anti-discrimination texts exist in the following laws:
The Labor Code (prohibits discrimination in the exercise of rights and responsibilities of labor relations), the Law on Free Economic Zones (prohibits discrimination in the sphere of commercial rights), the Law on Military Doctrine (prohibits discrimination of Belarusian citizens in foreign states), the Law on Social Welfare of Handicapped Persons (prohibits discrimination of handicapped persons).

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