121 of the Criminal Code of the RSFSR. Criminal prosecution of sodomy in the RSFSR

On December 17, 1933, the Decree of the All-Russian Central Executive Committee was published, which became law on March 7, 1934 (Article 154a of the Criminal Code of the RSFSR, in the later numbering - Article 121), in accordance with which criminal liability was introduced for voluntary sexual intercourse between a man with a man. Soon this norm was included in the criminal codes of all Soviet republics.
Criminal liability for sodomy was introduced into the legislation of the RSFSR (Criminal Code of the RSFSR of 1926) on March 7, 1934 and was in effect until June 3, 1993. In Soviet criminal law, sodomy was a crime against a person and was punishable by imprisonment for up to five years, and under aggravating circumstances (for example, when committing sodomy with minors) - for up to 8 years.
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, Genrikh Yagoda, Stalin was informed about the discovery of several groups in Moscow and Leningrad, which were engaged in “creating a network of salons, centers, brothels, groups and other organized formations of pederasts with the further transformation of these associations into direct spy cells ... an asset of pederasts, using caste isolation of pederastic circles for directly counter-revolutionary purposes, politically corrupted various social strata of youth, in particular working youth, and also tried to penetrate into 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.”
On December 3, 1933, Yagoda wrote to the Kremlin: “In the recent liquidation of associations of pederasts in Moscow and Leningrad, the OGPU established:
The existence of salons and dens where orgies were held.
Pederasts were engaged in recruiting and corrupting perfectly healthy youth, Red Army, Red Navy and individual university students. 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.”

The Politburo almost unanimously approved this proposal. Only Kalinin spoke out with a special opinion, speaking out "against the issuance of the law, but in favor of extrajudicial condemnation by the OGPU." Nevertheless, the law was issued, but the cases of homosexuals began to be considered by the OGPU secretly and "out of court" as political crimes.
At the same time, a socio-political campaign against homosexuality was launched in the Soviet press. So, Maxim Gorky, on the front pages of the Pravda and Izvestia newspapers on May 23, 1934, in the article “Proletarian Humanism” calls “homosexuality” “socially criminal and punishable” and says that “there has already been a sarcastic saying:“ Destroy homosexuality - fascism will disappear!’”. In January 1936, the People's Commissar for Justice, Nikolai Krylenko, states that "homosexuality is a product of the moral decay of the exploiting classes who do not know what to do." The report of the People's Commissar substantiated the expediency of criminal prosecution for sodomy, using rhetorical devices of heterosexism: “In our environment, good sir, you have no place. In our midst, among the working people who stand on the point of view of normal relations between the sexes, who build their society on sound principles, we do not need this kind of gentlemen. Later, lawyers and doctors in the USSR talked about homosexuality as a manifestation of the "moral decay of the bourgeoisie."
On December 17, 1933, the Decree of the All-Russian Central Executive Committee was published, which became law on March 7, 1934 (Article 154a of the Criminal Code of the RSFSR, in the later numbering - Article 121), in accordance with which criminal liability was introduced for voluntary sexual intercourse between a man with a man. Soon this norm was included in the criminal codes of all Soviet republics.
The total number of those convicted under this article is not exactly known. In the 1930s-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, in 1990 - 497, in 1991 - 462, in the first half of 1992 - 227 people. According to Dan Healy, the current maximum estimates of the number of convicts under this article are as high as 250,000. Referring to the data of participants in the anti-homophobia movement in Russia, he cites the number 60,000 as more realistic, based on the data of 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, December 3, 1991) and Sergei Shcherbakov (Collected Proceedings of the European Sexual Cultures Conference, Sexual Cultures in Europe, Amsterdam, 1992) point to the same figures.

The position of lesbians, gays, bisexuals, transgenders in 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 sexual 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 jointly and equates crimes consisting in 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 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 contradicts 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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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) 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, –

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. 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, -

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 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 through intercourse between a man and a man, inserting 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 using violence, threats or the 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)

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

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, -

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. 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, -

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 prevailing 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 (minor), 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), or 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.

Which installed the following:

Article 121. Sodomy

Sexual intercourse between a man and a man (sodomy)

shall be punishable by deprivation of liberty for a term of up to five years.

Sodomy committed with the use of physical violence, threats, or against a minor, or using the dependent position of the victim,

shall be punishable by deprivation of liberty for a term of up to eight years.

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

154-a. Sexual intercourse of a man with a man (sodomy) - imprisonment for a term of three to five years.

Sodomy committed with the use of violence or with the use of the dependent position of the victim - imprisonment for a term of three to eight years

In the first versions of the criminal legislation of the RSFSR, there was no responsibility for homosexuality.

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 roundup of persons suspected of sodomy was carried out, which resulted in the arrest of 130 people suspected of homosexual relationships. In a memorandum from the deputy chairman of the OGPU, Genrikh Yagoda, Stalin was informed about the disclosure of several groups in Moscow and Leningrad that were engaged in “by creating 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 pederast activists, 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 in 1989, 462 in 1992, and 227 in the first half of 1992. According to Dan Healy, the current maximum estimates of the number of convicts under this article are as high as 250,000. Referring to the data of participants in the anti-homophobia movement in Russia, he cites the number 60,000 as more realistic, based on the data of 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 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, sodomy, as such, 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 of

These articles establish liability for violent acts of a sexual nature (Article 132), 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).

According to the decision of the Plenum of the Supreme Court of the Russian Federation of 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.

At the same time, it should be noted that the sanction for the above crimes is identical to the sanctions for similar crimes associated with 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 the possible consequences of which is the conception of a child), and "other acts of a sexual nature."

A number of human rights organizations that consider homosexuality a norm are seeking the status of victims of political repression 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