Austria's supreme court has passed a motion cancelling paragraph 209 of the
Date: Mon, 20 Jul 1998 15:23:05 -0700 (PDT)
The Austrian Parliament, thus, ignored both the decision of the European Human Rights Commission in the Sutherland versus United Kingdom case ruling that an unequal age of consent is a violation of the European Human Rights Convention and two urgent demands by the European Parliament in 1997 and 1998 which had called upon Austria, on the occasion of the adoption of the annual reports and resolutions on the observance of human rights in the EU, to repeal the unequal age of consent law.
Only the members of the Green and the Liberal parties voted in favour of abolishing Article 209. The largest group, the Social-Democrates, was in a great dilemma and left the plenary in a move unheard of before, because they did not want to vote against the amendment but neither to vote for it and thus to breach the government coalition agreement with the conservative party.
With the same penal code reform bill, Parliament voted, however, the inclusion of same-sex partners in the definition of "next of kin" (or significant others) in Article 72 of the Penal Code regulating the right to refuse to testify in court against certain family members.
This is a real precedent - for the first time, same-sex partners have been recognised in Austria's legal system, reports Kurt Krickler from Vienna. This amendment was tabled by the Liberal Party in the Parliament's Law Committee during the negotiations leading up to the penal code reform Bill according to a proposal made by the gay and lesbian organisation HOSI Wien in its statement in the hearing process of the draft bill. ---
Legal Situation: Prostitution is legal in all but one provinces (Vorarlberl); prostitutes have to be registered and need to undergo weekly health checks and have to pay income taxes.
The age of consent: heterosexual: 14, male homosexual: 18, female homosexual: not addressed by law, but in practice as heteros
There are still three discriminating paragraphs concerning the legal situation of homosexuals ("advertisement for sexual deviation" ABOLISHED, "age of consent", "prohibition of organizations" ABOLISHED); prosecutions only for age-of-consent, the other two are considered dead law
The World Sex Guide
AUSTRIA LAWS: 1. Has no sodomy laws, the age of sexual consent is 18 for gay men and
14 for lesbians and heterosexuals. "Same Sex Lewdness" with persons
under 18 Years: a man over 19 years of age who engages in same-sex
Prostitution as such is not legally prohibited. Nor are the organization and promotion of ¨sex trips¨ disapproved by the law in principle, this on the basis of section 214 of the Penal Code which provides for a restrictive interpretation of the promotion of illicit sexual practices for remuneration; the deed consists of bringing a person into illicit sexual contact with another person. According to the jurisdiction, the ¨bringing into contact¨ is to be particular illicit sexual practices. The mere organization of trips to countries or regions where extensive prostitution is notorious, is not to be subsumed under this term.
A quite different matter is the organization and promotion of child sex tourism. In accordance with section 206 of the Penal Code sexual intercourse with a minor (under 14 years of age), and in accordance with section 207 of the Penal Code, the abuse of a minor for illicit sexual practices of any other kind than sexual intercourse are liable to prosecution. The organization and/or promotion of trips specifically destined for illicit sexual intercourse with minors would have to be seen as secondary (determinative and/or contributory) perpetration of an offence (in the meaning of section 12, second and third cases of the Penal Code) in respect of the deed of the principal perpetrator; the secondary perpetrator is liable to the same prosecution as is the principal perpetrator (compare "Penalties" below).
Section 62 of the Austrian Penal Code applies in principle to deeds committed on national territory and section 63 to deeds committed on an Austrian vessel or aircraft.
In accordance with section 64, first para, the Austrian Penal Code also applies to a number of offences listed in the provisions and committed abroad, irrespective of the legal provisions in force at the place of the offence. Among these offences are, in accordance with section 64, para 1, Z 4a, the sexual intercourse with minors (section 206 of the Penal Code) and illicit sexual practices with minors (section 207 of the Penal Code), if the perpetrator is an Austrian and has his permanent residence in Austria. The Austrian Penal Code is thus applicable extraterritorially if an Austrian citizen with permanent residence in Austria commits sexual intercourse or illicit sexual practices with minors outside Austria (sections 206 and 207 of the Penal Code). This applies irrespectively of the legislation in force at the place of the offence, i.e. it would be of no avail that the age up to which minors are protected is lower at the place of the offence than in Austria.
As regards other offences committed abroad (than those listed in section 64 of the Penal Code), Austrian penal laws only apply on condition of double criminal liability, i.e. only if the offence is liable to prosecution also under the laws in force at the place of the offence. Further preconditions are, in principle, that the perpetrator was an Austrian citizen at the time of the offence and still holds Austrian citizenship at the time of the instigation of the criminal proceedings, or, if the perpetrator was an alien at the time of the offence, is apprehended in Austria and cannot be extradited for another reason then the kind or quality of his offence (section 65, para 1, of the Penal Code).
In accordance with section 206, para 1, of the Penal Code, sexual intercourse with minors is punishable with imprisonment of one to ten years. In accordance with section 206, para 2 of the Penal Code, aggravated consequences of an offence entail a higher punishment, in the event of (carelessly caused) death of a minor up to ten to twenty years of imprisonment.
According to section 207, para 1 of the Penal Code, illicit sexual practices with minors are punishable with imprisonment of six months to five years. Aggravated consequences of the offence (as in section 206, para 2 of the Penal Code) entail imprisonment up to a maximum period of five to fifteen years.
Operators of brothels in which child prostitution is committed, panders and the like are considered secondary perpetrators and are, in principle, liable to the same criminal prosecution as the principal offenders.
Smuggling of human beings in accordance with section 217 of the Penal Code is, in principle, not linked with the age of the victim. The respective provisions foresee that whoever brings a person, no matter whether he/she may already have been engaged in illicit sexual practices, have carried out these illicit sexual practices in another country than that of which he /she is a citizen or has his/her permanent residence, into contact with illicit sexual practices or solicits the latter, is liable to imprisonment of six months to five years, in the even of a commercial basis of one to ten years.
In the case of smuggling minors (under 14 years of age), this provision can be applicable in addition to sections 206 bis of the Penal Code.
The terms ¨detention¨ and/or ¨confinement¨ are not clear. In principle, the following offence could be at stake: section 101 of the Penal Code (abduction of a minor for the purpose of illicit sexual abuse of bringing into contact with illicit sexual practices): imprisonment of six months to five years; sections 105, 106, para 1, Z 3 of the Penal Code (compulsion by threat or force): imprisonment of six months up to five years, if the forced person is compelled to carry out, tolerate, or neglect a deed which violates essential interests of the person forced; section 105 of the Penal Code: imprisonment up to three years in accordance with para 1, under aggravated circumstances one to ten years in accordance with para 2.
With the exception of para 101 of the Penal Code the above provisions could be applied in addition to those provided for in sections 206 and 207 of the Penal Code. Section 101 (abduction of a minor) would be punishable as such only if, in accordance with sections 206 and 207 of the Penal Code, no sexual intercourse and no illicit sexual practices with minors occurred.
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