Article on sodomy of the Criminal Code of the RSFSR. Criminal prosecution of sodomy in the RSFSR

In Soviet times, as young people often hear today, everyone was equal, there were no beggars, everyone worked in good faith, and no one ever heard of such dirty tricks as homosexuality and other perversions! However, it is worth looking at the criminal code of the USSR, as it becomes clear that not everything is so simple. The Criminal Code of the USSR is able to impress modern Russians with very unusual articles.

Begging

Being a beggar in the USSR was forbidden by law. Article 209 of the Criminal Code of the RSFSR stated that "Systematic vagrancy or begging, continued after a second warning made by administrative bodies" is punishable by imprisonment for up to two years or correctional labor for a period of six months to one year. It was believed that there was no social basis for begging in the Land of the Soviets, so the people who do this are simply idlers. However, the foundations may not have been, but there were beggars. There were especially many of them after the Great Patriotic War when many crippled and homeless people appeared.

Speculation

According to article 154 of the Criminal Code of the RSFSR, speculation was called “buying and reselling goods or other items for the purpose of profit” and punished with imprisonment from two to seven years with confiscation of property. Today it is even difficult for us to understand what constitutes a crime here, since all clothing markets are filled with these very “speculators”.

Moonshine

It is not forbidden to drive moonshine without the purpose of sale these days. And under the Soviet regime, this occupation, innocent by our standards, was fraught with major troubles. Article 158 of the Criminal Code of the RSFSR for the manufacture and storage without the purpose of selling moonshine or moonshine still threatened with correctional labor for up to six months or a fine of up to 100 rubles. If it was about making moonshine for the purpose of marketing, then it was possible to sit down for up to three years or get off with a fine of up to 300 rubles. Laws on the separation of church from state and school from church Citizens of the USSR were not forbidden to believe in God, but the life of religious communities was strictly regulated. Thus, Article 142 of the Criminal Code of the RSFSR “Violation of the Laws on the Separation of Church from State and School from Church” prohibited the forced collection in favor of religious organizations and clergymen, the production and distribution of messages, leaflets calling for non-compliance with the legislation on cults, etc. The punishment for this crime is corrective labor for up to one year and a fine of up to 50 rubles. However, believers living near churches, who took tonsure and engaged in labor at monasteries, were more often punished for begging and parasitism.

Counter-revolutionary activity

The infamous "58th article" of the Criminal Code of the RSFSR in the edition of 1922. It included treason, escape abroad, armed uprising, contacts with foreign countries, espionage, damage to Soviet industry and the national economy, sabotage, failure to report on an impending counter-revolutionary crime, etc. According to this article, in the camp, in exile and at the execution wall, there were both military conspirators and simple hard workers who, by an accident, talked to the wrong people. In 1961, this article became invalid, but another one appeared in the Criminal Code, number 69 "Sabotage". For "Action or inaction aimed at undermining industry, transport, agriculture, the monetary system, trade" threatened a term of eight to fifteen years with confiscation of property. A head of an enterprise or a worker who made a mistake in production without any malicious intent could end up behind bars.

Sodomy

Criminal liability for sodomy was introduced in the USSR only in 1934. Sodomy was a crime against the person and was punishable by imprisonment for up to five years. Under aggravating circumstances, such as intercourse with a minor or with the use of violence, the term was increased to eight years. In the 1920s, our country followed the path of gay tolerance. Immediately after the revolution, the corresponding article of the tsarist legislation was abolished. In 1926, the founder of the World Sexual Reform League, Magnus Hirschfeld, visited the USSR at the invitation of the Soviet government. And when in 1928 the Institut für Sexualwissenschaft congress was held in Copenhagen, the USSR was declared by the congress participants to be a model of sexual tolerance. The article was returned in 1934 at the initiative of Genrikh Yagoda, who, in a memo to the Kremlin, reported on the discovery of a whole network of underground dens where pederasts staged their orgies: “Pederasts were recruiting and corrupting perfectly healthy youth. We do not have a law according to which it would be possible to prosecute pederasts in criminal procedure. I would consider it necessary to issue an appropriate law on criminal liability for pederasty.” Article 121 of the Criminal Code of the RSFSR “Sodomy” was repealed only in 1993.

New edition Art. 132 of the Criminal Code of the Russian Federation

1. Sodomy, lesbianism or other acts of a sexual nature with the use of violence or with the threat of its use against the victim (victim) or other persons, or using the helpless state of the victim (victim) -

shall be punishable by imprisonment for a term of three to six years.

2. The same acts:

a) committed by a group of persons, a group of persons by prior agreement or an organized group;

b) associated with the threat of murder or infliction of grievous bodily harm, as well as those committed with special cruelty towards the victim (victim) or other persons;

c) caused infection of the victim (victim) with a venereal disease, -

shall be punishable by deprivation of liberty for a term of four to ten years, with or without restraint of liberty for a term of up to two years.

3. The acts provided for by paragraphs one or two of this article, if they:

a) committed against a minor (minor);

b) negligently entailed the infliction of grievous harm to the health of the victim (victim), infection of him (her) with HIV infection or other grave consequences, -

shall be punishable by deprivation of liberty for a term of eight to fifteen years, with or without deprivation of the right to hold certain positions or engage in certain activities for a term up to twenty years, and with restraint of liberty for a term up to two years.

4. The acts provided for by paragraphs one or two of this article, if they:

a) negligently caused the death of the victim (victim);

b) committed against a person under the age of fourteen, -

shall be punishable by deprivation of liberty for a term of twelve to twenty years, with or without deprivation of the right to occupy certain positions or engage in certain activities for a term up to twenty years, and with restriction of liberty for a term up to two years.

5. The deeds provided for in paragraph "b" of part four of this article, committed by a person who has a previous conviction for a previously committed crime against the sexual integrity of a minor, -

shall be punishable by deprivation of liberty for a term of fifteen to twenty years, with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to twenty years, or life imprisonment.

Commentary on Article 132 of the Criminal Code of the Russian Federation

1. Sodomy (pederasty) is a sexual contact of a man with a man, carried out by introducing the penis of an active partner into anus passive partner (per anus). Other forms of satisfaction of sexual passion are not sodomy, but they can be considered as other acts of a sexual nature, for example, insertion of the penis into the mouth. Other acts of a sexual nature include some forms of sexual contact between a man and a woman: oral, anal sex, penetrating the genitals with a hand or any object, etc.

2. Lesbianism (sapfism) - female homosexuality, which is sexual contacts between women through imitation of sexual intercourse.

3. The main object of criminal encroachment is the established way in the field of sexual relations, and in the case of an act of sodomy, lesbianism, other acts of a sexual nature in relation to a minor (underage), in addition to this, the normal sexual and moral development of the victim (victim). An additional object is the honor and dignity of the individual, in the most dangerous cases, the life or physical (mental) health of the victim (victim).

4. The objective side is the sexual contacts of a man with a man (sodomy), a woman with a woman (lesbianism), the commission of other acts of a sexual nature with the use of: a) violence; b) threats of its use; c) using the helpless state of the victim (victim).

4.1. The actions of a person who has obtained consent to commit an act of sodomy, lesbianism, or other acts of a sexual nature under the threat of disclosure of disgraceful information, destruction, damage or seizure of property, etc., cannot be considered as violent acts of a sexual nature. In some cases, such actions constitute a crime under Art. 133.

4.2. About the concept and content of physical (mental) violence, helpless state, qualifying signs, see comments. to Art. 131.

4.3. The main element of this crime - the formal one - is considered completed at the moment of the beginning of sexual contact between a man and a man (sodomy), a woman with a woman (lesbianism), and the commission of other acts of a sexual nature.

5. The subjective side of the corpus delicti is characterized by direct intent. The perpetrator is aware that he is committing acts of a sexual nature against the will of the victim (victim), using violence, the threat of its use, or the helpless state of the victim (victim), and wants to commit them.

6. The subject of a criminal encroachment may be a natural sane person of any gender who has reached the age of 14.

7. In parts 2 and 3 of the comments. article provides for qualifying and especially qualifying features similar to the circumstances specified in Art. 131.

8. Violent acts of a sexual nature, provided for in Parts 1 and 2 of the comment. articles belong to the category of serious crimes, part 3 - especially serious crimes.

Another commentary on Art. 132 of the Criminal Code of the Russian Federation

1. Most of the legal signs of the crime provided for in the commented article coincide with the signs of rape. The norm formulated in the commented article, therefore, is almost in everything an exact copy of Art. 131 of the Criminal Code of the Russian Federation - this concerns the structure of the crime, its structure, the list of qualifying signs, punishability.

shall be punishable by imprisonment for a term of three to six years.

2. The same acts:

a) committed by a group of persons, a group of persons by prior agreement or an organized group;

b) associated with the threat of murder or infliction of grievous bodily harm, as well as those committed with special cruelty towards the victim (victim) or other persons;

c) entailed infection of the victim (victim) with a venereal disease, –

shall be punishable by deprivation of liberty for a term of four to ten years, with or without restraint of liberty for a term of up to two years.

3. The acts provided for by paragraphs one or two of this article, if they:

a) committed against a minor (minor);

b) negligently entailed the infliction of grievous harm to the health of the victim (victim), infection of him (her) with HIV infection or other grave consequences, –

4. The acts provided for by paragraphs one or two of this article, if they:

a) negligently caused the death of the victim (victim);

b) committed against a person under the age of fourteen, –

5. Acts, provided for by paragraph "b" of part four of this article, committed by a person who has a criminal record for a previously committed crime against the sexual integrity of a minor, -

Commentary on Art. 132 of the Criminal Code of the Russian Federation

1. The main object of violent acts of a sexual nature is similar to the object of rape, but the victim of this crime can be a person of both male and female.

2. The objective side of the crime under consideration is characterized by actions - the commission of sodomy, lesbianism or other acts of a sexual nature with the use of violence or with the threat of its use against the victim (victim) or other persons, or using the helpless state of the victim (victim). In the case of the voluntary consent of the partners when committing the acts of a sexual nature specified in the law, there is no corpus delicti.

3. Sodomy (a kind of homosexuality, male homosexuality, pederasty) is understood as violent acts of a sexual nature by intercourse of a man with a man, insertion of the penis of an active partner into the anus (rectum) of a passive partner. Only a man can be the victim of sodomy.

Lesbianism as a female form of homosexuality (sapfism, tribadia) is understood as the forcible commission by a woman against another woman of various sexual acts aimed at satisfying sexual passion through physical contact with the genitals of the victim (imitation of sexual intercourse, contacts of the genitals with other parts of the body, masturbation). etc.).

Other actions of a sexual nature should be understood as any other ways of forcibly satisfying sexual needs between men, between a woman and a man, between women in other forms, except for rape, sodomy and lesbianism, for example, anal or oral contact between a man and a woman, between men. The same cases should include sexual contact between a man and a woman in a natural form in the case of a woman using violence against a man, forcing him to copulate.

4. The Constitutional Court of the Russian Federation in Ruling No. 135-O of March 24, 2005, refused to accept for consideration the complaint of I.L. Chernyshev, who challenged the constitutionality of Art. 132 of the Criminal Code, containing, in his opinion, the vagueness of the concept of “other acts of a sexual nature”, indicating that Art. 132 of the Criminal Code, which provides for criminal liability for violent acts of a sexual nature, i.e. for sodomy, lesbianism or other acts of a sexual nature with the use of violence or with the threat of its use against the victim (victim) or other persons, or using the helpless state of the victim (victim), and aimed at protecting the individual from such attacks, as such constitutional does not violate the applicant's rights in a particular criminal case.

6. The crime is considered completed from the moment of the beginning of the commission of sodomy, lesbianism, other acts of a sexual nature with the use of violence, threat or helpless state of the victim (victim).

7. The subjective side of the crime is characterized by direct intent.

8. The subject of the crime is a sane person, male or female, who has reached the age of 14 years.

9. Qualifying signs specified in parts 2-5 of the commented article, with similar signs of Art. 131 of the Criminal Code are the same in terms of list and content (see comments to article 131)

Which installed the following:

Previously, criminal liability for sodomy was established by Art. 154a of the Criminal Code of the RSFSR of 1926:

Story

In the post-revolutionary reform of legislation, the persecution of homosexual behavior, which was present in the Criminal Code of tsarist Russia, was abolished: in the Criminal Code of the RSFSR of 1922, the corresponding article was absent; in the 1920s, articles on liability for sodomy were removed from the Criminal Code of the Caucasian and Central Asian republics.

In 1926, at the invitation of the Soviet government, the USSR was visited by Magnus Hirschfeld, a gay emancipator and founder of the World League of Sexual Reforms - and as a result, in 1928 at the Copenhagen Congress of the Institut für Sexualwissenschaft, at which the founding of the League was announced, the USSR was cited as a model for sex -tolerance.

Article acceptance

As shown by the latest archival research, the OGPU was the initiator of the introduction of criminal prosecution for sodomy. In September 1933, the first raid on persons suspected of sodomy was carried out, as a result of which 130 people were arrested, suspected of homosexual relationships. In a memorandum from the deputy chairman of the OGPU, Heinrich Yagoda, Stalin was informed about the disclosure of several groups in Moscow and Leningrad that were engaged in “the creation of a network of salons, centers, dens, groups and other organized formations of pederasts with the further transformation of these associations into direct spy cells ... the activists of pederasts, using the caste isolation of pederast circles for directly counter-revolutionary purposes, politically corrupted various social strata of youth, in particular working youth, and also tried to infiltrate the army and navy". On the document, Joseph Stalin noted: "It is necessary to punish the bastards in an approximate way, and to introduce an appropriate guiding decree into the legislation."

Number of convicts

The total number of those convicted under this article is not exactly known. In the 1980s, about 1,000 men were convicted and sent to prisons and camps every year. In the late 1980s, their number began to decrease. According to the Ministry of Justice of the Russian Federation, in 1989, 538 people were sentenced under Article 121 in Russia, 497 - 462, in the first half of 1992 - 227 people. According to Dan Healy, the current maximum estimates for the number of convicts under this article are as high as 250,000. Referring to data from members of the anti-homophobia movement in Russia, he cites the number 60,000 as more realistic, based on convictions by year (approximately 1,000 people per year, data GARF and TsMAM). However, he also agrees with the opinion of Neil McKenna, who claims that it is hardly possible to find out the exact figure due to the lack of access to the necessary archives. Valery Chalidze (The Advocate magazine December 3, 1991) and Sergey Shcherbakov (Collection of Materials of the Conference on Sexual Cultures of Europe, Sexual Cultures in Europe, Amsterdam, 1992) point to the same figures.

Article cancellation

Article repeal movement

Cancellation of the article and consequences

Part 1 of Article 121 was excluded from the Criminal Code of the RSFSR on May 27, 1993.

Article 121 Sodomy
Sexual intercourse of a man with a man (sodomy) committed with the use of physical violence, threats, or against a minor, or with the use of a dependent position or a helpless state of the victim, -
shall be punishable by deprivation of liberty for a term of up to seven years.
(as amended by the Law of the Russian Federation of 04.29.93 N 4901-1 - Gazette of the SND of the Russian Federation and the Armed Forces of the Russian Federation, 1993, N 22, art. 789)

Criminal Code of the RSFSR 1960

Sodomy in the modern Criminal Code of the Russian Federation

Sodomy, as such, has ceased to be a crime in Russia; but preserved as a sign of composition in Sts. 132, 133, 134 of the new Criminal Code of the Russian Federation, adopted in the city. These articles establish liability for violent acts of a sexual nature (Art. 132), compulsion to act of a sexual nature (Art. 133) and sexual intercourse and other acts of a sexual nature with a person who is not who have reached the age of sixteen (Article 134).

According to the decision of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2004, explaining to the courts the specifics of the application of Articles 131 and 132 of the Criminal Code of the Russian Federation, sodomy refers to sexual contacts between men.

It should be noted that the sanction for the crimes provided for in Articles 131 and 132 of the Criminal Code Russian Federation is identical to the sanction for similar crimes involving ordinary heterosexual intercourse, so it cannot be said here that the law distinguishes between these types of crimes. The differences are of a formal nature: the legislator considered it fundamental to separate the concepts of "sexual intercourse" - sexual intercourse between a man and a woman (one of possible consequences which is the conception of a child), and "other acts of a sexual nature."

However, there are differences under Art. 134 of the Criminal Code of the Russian Federation: while the maximum punishment for voluntary heterosexual contact with a person from 14 to 16 years old is four years in prison (part 1 of article 134 of the Criminal Code of the Russian Federation), such homosexual contacts are punishable by imprisonment for up to six years (part 1 of article 134 of the Criminal Code of the Russian Federation). 2 article 134 of the Criminal Code of the Russian Federation). In addition, if the age difference between the victim (victim) and the defendant (defendant) is less than four years, then for the act under Part 1 of Art. 134 of the Criminal Code of the Russian Federation, punishment in the form of imprisonment is not applied. This rule does not apply to Part 2 of Art. 134 of the Criminal Code of the Russian Federation, that is, for homosexual contacts.

A number of human rights organizations seek the status of victims of political repressions for those convicted under Article 121. The Russian Network of LGBT Organizations declared 2009 the Year of Remembrance for Gay and Lesbian Victims of Political Repressions.

Famous people convicted under sections 121 or 154a

Sergei Parajanov - film director. He was convicted twice under the same article with a difference of 16 years.
Vadim Kozin - Russian pop singer, convicted in 1944.
Nikolay Klyuev is a peasant poet. In 1934, Klyuev was arrested, at that time he was almost the only person who was persecuted for cohabitation with men. In 1937 he was shot on other charges.
Nikolai Yezhov - People's Commissar of Internal Affairs of the USSR during the period of mass repressions. There is a version that Yezhov confessed to sodomy in order to avoid a more severe punishment, but his calculation did not materialize, and he was shot in 1940.
Gennady Trifonov - writer, poet and dissident, known for his novel "Grid" about the love of two prisoners. He was arrested, as he himself claims, for supporting Alexander Solzhenitsyn, who was expelled from the USSR, although he never concealed his orientation, he was sentenced to 4 years.
Klein, Lev Samuilovich - Soviet and Russian scientist, historian, anthropologist, archaeologist, philologist, doctor of historical sciences.
Korogodsky, Zinovy Yakovlevich - theater director, professor, People's Artist of the RSFSR.
Panchenko, Nikolai Dmitrievich - public figure, one of the founders of the Society of HIV-infected and AIDS patients. [ ]
Shtarkman, Naum Lvovich - Russian pianist and music teacher, professor at the Moscow Conservatory (1987), Honored Artist of the RSFSR (1990), People's Artist of the Russian Federation (1996).
Lvov-Anokhin, Boris Aleksandrovich - Soviet and Russian theater director, theater critic, ballet critic, People's Artist of Russia. [ ]

Status of lesbians, gays, bisexuals, transgenders in the Russian Federation Kochetkov (Petrov) Igor

Criminalization of homosexual relations

Criminal prosecution the very fact of homosexual relations has not bypassed the domestic legal space. The Criminal Code of the RSFSR of 1960 in its original version contained the offense of sodomy (Article 121), according to which sexual intercourse between a man and a man was punishable by imprisonment for up to five years. Sodomy with the use of physical violence, threats, or using the dependent position of the victim was punished more severely than rape: imprisonment for up to eight years. Sodomy in relation to a minor (without the use of violence) also entailed stricter liability than heterosexual intercourse with a person who had not reached puberty, and was punishable by imprisonment for up to eight years.

With the fall Soviet Union democratic reforms in Russia led to the reform of criminal law. Already in 1991, at the official level, the need to decriminalize non-violent homosexuality was emphasized, and in 1993, Art. 121 of the Criminal Code of the RSFSR was changed: only sodomy committed with the use of violence or threats against a minor, as well as using the dependent position or helpless state of the victim, was considered as a crime, while the maximum liability for the corresponding crime was reduced to seven years.

The provisions of the current 1996 Criminal Code of the Russian Federation can be characterized as a step towards the recognition of the permissibility of homosexual relations:

1) the special part of the Criminal Code of the Russian Federation, containing specific elements of crimes, no longer considers as such sexual relations between persons of the same sex as a crime;

2) despite the allocation of two different offenses - rape (heterosexual sexual intercourse, art. 131) and violent acts of a sexual nature (including sodomy and lesbianism, art. 132), the responsibility for these crimes is identical (in both cases, the punishment may be deprivation freedom for a period of three to six years for an unqualified composition and from four to ten years or eight to fifteen years for qualifying signs, which are also worded in the same way);

3) The Criminal Code of the Russian Federation considers together and equates crimes consisting of compulsion to act of a sexual nature (Article 133) and sexual intercourse and other acts of a sexual nature with a person under the age of sixteen (Article 134), regardless of their homosexual or heterosexual nature (i.e., the age of consent for heterosexual and homosexual relationships is equalized), and responsibility in both cases is provided for in the same framework.

Nevertheless, since the adoption of the Criminal Code of the Russian Federation, a number of politicians have made attempts to amend the criminal law and introduce criminal liability for the promotion of homosexual relations, but none of the proposed projects was adopted.

Particularly noteworthy is the draft "On the introduction of an amendment to the Criminal Code of the Russian Federation, providing for criminal liability for the promotion of homosexuality", proposed by the deputy A. V. Chuev several times during 2003-2006. in various editions. This bill was intended to establish criminal liability for “propaganda of homosexuality contained in a public speech, publicly displayed work or mass media, including expressed in a public demonstration of a homosexual lifestyle and homosexual orientation”, with liability in the form of deprivation of the right to hold certain positions or engage in certain activities.

It should be noted the position of the Government of the Russian Federation regarding the changes proposed by Chuev, expressed in official reviews of the draft version:

Since homosexuality itself is not a criminally punishable act, its propaganda cannot be considered as a socially dangerous encroachment on the object of criminal law protection. The proposed addition is contrary to the provisions of Article 29 of the Constitution of the Russian Federation (in terms of restricting the expression of one's opinions and beliefs), as well as Articles 8, 10 and 14 of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, which provide for the right to respect for private and family life, freedom of expression opinions and prohibition, discrimination.

In order to ensure the protection of sexual freedom and sexual inviolability of both men and women, the legislator has established criminal liability for crimes of a sexual nature, including sodomy and lesbianism, associated exclusively with violence or the threat of its use. In turn, the commission of actions of a similar nature by mutual agreement of the parties does not form not only a corpus delicti, but also an administrative offense. In this regard, responsibility for the promotion of homosexuality in the absence of responsibility for homosexuality itself cannot be established. In addition, this proposal is not consistent with the provisions of the Law of the Russian Federation of December 27, 1991 No. 2124-1 “On the Mass Media”, in particular Article 4, which establishes a ban only on the dissemination of information, the dissemination of which is prohibited by federal laws.

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