Article 200 - Content

Content

Until November 1996, Article 200 stated that:

1. Sexual relations between persons of the same sex are punishable by a prison term between one and 5 years.
2. The act of a major having sexual relations with a minor of the same sex is punishable by a prison term between 2 and 7 and the withdrawing of some rights.
3. Sexual relations with a person of the same sex in the impossibility of that person defending themselves or expressing their desire through constraint is punishable by a prison term between 3 and 10 years and the withdrawal of some rights.
4. If the act committed in points 2 and 3 has the result of gravely injuring the body or health, the prison term will be between five and fifteen years, accompanied by the withdrawal of some rights, and if it has the result of the death or suicide of the victim, the punishment will be a prison term between 15 and 25 years and the withdrawal of some rights.
5. The impulsion or lure of another person in the viewing of the practice of sexual relations between persons of the same sex, as well as propaganda or any other acts of prosyletism committed for the same purpose are punishable with a prison term between one and 5 years.

In 1995, a local court in Sibiu asked the Constitutional Court of Romania whether the article is constitutional. In order to formulate its answer, the Constitutional Court decided to ask the religious denominations, academy, parliament and civil society groups to discuss the issue of homosexuality. All the churches which answered to the request condemned homosexuality, the Senate rejected the charges that the article is contrary to the constitution and the European Human Rights Convention, the academy announced that it will take time to analyse the issue, while the civil society asked for the ban to be removed.

The Constitutional Court ruled that the ban is not constitutional, "to the extent that it refers to consensual sexual relations between adults of the same sex, not taking place in public and not producing public scandal".

As a result of this ruling and of international pressure, on November 14, 1996, when a new Penal Code came into force, the first paragraph of the article was amended to read:

1. Sexual relations between persons of the same sex, committed in public or producing a public scandal, are punishable by a prison term between one and 5 years.

This amendment brought about the legalisation of homosexual activity in private, but continued to criminalise it in certain circumstances. The wording "committed in public or producing a public scandal" was added as a compromise between those who wanted to maintain homosexuality as a crime (such as parliamentarians from the National Christian-Democratic Peasants Party) and those who wanted the entire article repealed (such as the Council of Europe and human rights organisations).

The law also banned "inciting or encouraging a person to the practice of sexual relations between persons of the same sex", as well as spread of "propaganda" or "proselytism" toward homosexuality.