121 of the Criminal Code of the Russian Federation of the USSR. Criminal prosecution of sodomy in the Russian Federation. Punishment for sodomy in old Russia

The term “sodomy” in modern Russian is used in two meanings: as a designation of homosexual contact between men (usually in a religious context) or as a purely legal term meaning a specific crime. Let's try to figure out what meaning this word has and what legal meaning it has.

"Sin of Sodom"

Thinking about the question “Sodomy - what is it?”, you inevitably begin to remember the Bible. And indeed: this word came into the Russian language from Church Slavonic, and specifically from religious law. In it, this term initially meant exclusively anal sex between two men.

A synonym for the term “sodomy” in church law is also the later name “sodomy,” borrowed from European languages. This term is associated with biblical legend about the city of Sodom, whose inhabitants became famous for such perverted behavior that they began to pester even the angels who came to the city to the only righteous Lot. It should be noted that in the ecclesiastical legal sense, sodomy is not only sodomy, but also all other sexual practices considered vicious from the point of view of the Church (masturbation, oral sex, even extramarital affairs).

Punishment for sodomy in old Russia

Initially, in Rus' homosexuals were treated rather leniently. There was no criminal punishment for it under secular law, and church punishments were limited to penance for a period of one to seven years - that is, practically the same as for fornication between a man and a woman.

However, over time the situation changed. Influenced Western Europe Articles for sodomy appeared in Russian law, providing for severe punishment. The most terrible thing for homosexuals was, perhaps, the rule. In the first years under it, there was a rule according to which this crime was punishable by burning (a thing, in general, for the Russian legal tradition, to put it mildly, is uncharacteristic). Later, the punishment was softened: ordinary homosexual contact was punishable, and those associated with rape were punishable by indefinite exile.

Later, up to the point of punishment, they were practically not used. However, the “Code” adopted in 1832 (essentially the first Russian criminal code) again contained provisions on liability for sodomy. Now the perpetrators were punished with prison for no less than three months, and in special circumstances (violence, sex with a minor) - up to eight years. This punishment was formally in force until the October Revolution.

Pre-revolutionary law itself did not give a direct answer to the question about sodomy - what it is. However, in court practice, this crime was understood almost exclusively as anal intercourse.

Tolerant USSR?

First Soviet years homosexuality was not prohibited. Old time law Russian Empire did not apply, and there was no liability in the new criminal laws.

Moreover, the leadership of the Union even suppressed attempts to introduce punishment for this in individual republics. The USSR of the twenties, not without reason, was considered a model of tolerance for sexual deviations. There was no article for sodomy in the USSR at that time.

Return to punishment

The situation changed in the early thirties. First, allegations appeared about sodomy, that it was an exclusively bourgeois perversion, intolerable in the Soviet state. The OGPU began arresting people suspected of unconventional relationships. It was alleged that homosexuals create secret organizations with the aim of corrupting and politically corrupting youth. And in 1934, an article for sodomy was introduced into the Criminal Code of the RSFSR, and a little later - into the Criminal Code of other republics of the USSR. From that moment on, sodomy again became a crime in the USSR.

Soviet legislation defined sodomy as any sexual contact between a man and a man. For voluntary sex, the punishment was imprisonment for up to five years, for violence or coercion - up to eight.

The exact number of people convicted under this article is unknown. It is believed that on average about a thousand sentences were passed in the USSR per year, but whether this is true is impossible to verify, since some of the criminal cases have been lost, and the absolute majority are still in closed archives. According to human rights activists, in total, at least 60 thousand people have served their sentences under the article punishing sodomy.

An interesting fact: only homosexual men were punished. Lesbian women were never punished in the USSR, and their preferences remained their own matter.

Abolition of criminal penalties

However, since the 70s, the opinion began to spread in the USSR that sodomy should be abolished. For example, there is a well-known joke: “Putting a homosexual in prison is the same as sentencing an alcoholic to a distillery.” More seriously, it was argued that the mere immorality of actions should not be considered a crime. However, until the very end of the USSR, responsibility remained.

The situation changed after the collapse of the Union and the declaration of Russian independence. Although in the first years of the existence of the Russian Federation, sodomy was still considered a crime (the old Soviet law was still applied), in 1993 the article was changed. From that moment on, punishment was imposed only for forced sodomy or for sex with a minor.

Modern Russian legislation on sodomy

Now in Russia there is no punishment for sodomy in itself. However, the term has been preserved. Now punishment is provided only for sodomy or other actions of a similar nature (including lesbianism), committed with the help of violence, coercion, or in which the victim is a person who has not reached the “age of consent” (in Russia it is set at 16 years). Voluntarily, adults and sane citizens have the right to do whatever they please.

Despite the fact that Russia has recently introduced liability for homosexual propaganda, there is no reason to believe that an article of the Criminal Code of the Russian Federation for sodomy will be introduced.

Which set the following:

Article 121. Sodomy

Sexual intercourse between a man and a man (sodomy)

is punishable by imprisonment for a term of up to five years.

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

is punishable by imprisonment for a term of up to eight years.

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

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

Sodomy committed with the use of violence or taking advantage 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 liability for homosexuality.

As the latest archival research shows, the initiator of the introduction of criminal prosecution for sodomy was the OGPU. In September 1933, the first raid on persons suspected of sodomy was carried out, as a result of which 130 people were arrested for suspected homosexual relations. In a memo 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, hearths, dens, groups and other organized formations of pederasts with the further transformation of these associations into direct spy cells... the active 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: “The scoundrels must be roughly punished, and the corresponding governing decree must be introduced into legislation.”

Number of convicts

The total number of people convicted under this article is unknown. In the 1980s, about 1,000 men were convicted annually and sent to prisons and camps. 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 - 497, 462 - in the first half of 1992, 227 people. According to Dan Healy, current maximum estimates of the number of people convicted under this article reach 250,000. Referring to data from participants in the anti-homophobia movement in Russia, he cites the number 60,000 as more realistic, based on conviction data by year (approximately 1,000 people per year, data GARF and CMAM). 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. These same figures are indicated by Valery Chalidze (magazine “The Advocate” December 3, 1991) and Sergei Shcherbakov (Collection of materials from the Conference on sexual cultures Europe, Sexual Cultures in Europe, Amsterdam, 1992).

Movement to repeal the article

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 was preserved as a sign of composition in art. 132, 133, 134 of the new Criminal Code of the Russian Federation, adopted in

These articles establish liability for violent acts of a sexual nature (Article 132), coercion to acts of a sexual nature (Article 133) and sexual intercourse and other actions of a sexual nature with a person under sixteen years of age (Article 134).

According to the resolution 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 above crimes is identical to the sanction for similar crimes associated with ordinary heterosexual sexual intercourse, therefore 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 actions of a sexual nature.”

A number of human rights organizations that consider homosexuality to be the 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 of Gay and Lesbian Victims of political repression»

Which set the following:

Article 121. Sodomy

Sexual intercourse between a man and a man (sodomy)
Punishable by imprisonment for a term of up to five years.
Sodomy committed with the use of physical violence, threats, or against a minor, or taking advantage of the dependent position of the victim,
Punishable by imprisonment for a term of up to eight years.

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

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

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

Story

Acceptance of the article

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

Number of convicts

The total number of people convicted under this article is unknown. In the 1980s, about 1,000 men were convicted annually and sent to prisons and camps. 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 - 497, 462 - 462, in the first half of 1992 - 227 people. According to Dan Healy, current maximum estimates of the number of people convicted under this article reach 250,000. Referring to data from participants in the anti-homophobia movement in Russia, he cites the number 60,000 as more realistic, based on conviction data by year (approximately 1,000 people per year, data GARF and CMAM). 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. The same figures are indicated by Valery Chalidze (magazine “The Advocate” December 3, 1991) and Sergey Shcherbakov (Collection of materials from the Conference on Sexual Cultures of Europe, Sexual Cultures in Europe, Amsterdam, 1992).

Movement to repeal the article

Cancellation of the article and consequences

It should be noted that the sanction for the above crimes is identical to the sanction for similar crimes associated with ordinary heterosexual sexual intercourse, therefore we cannot talk about any discrimination here. 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 actions of a sexual nature.”

The victims of Article 121 were not officially recognized as victims of political repression, which is what a number of human rights organizations are seeking. The Russian Network of LGBT Organizations declared 2009 the “Year of Remembrance of Gays and Lesbians - Victims of Political Repression.”

Famous people convicted under Articles 121 or 154a

Notes

Vladimir Tolts, 2002
Maxim Gorky, 1953, p.238
Vladimir Kozlovsky, 1986, p.154
Healy D. Homosexual attraction in revolutionary Russia. M., 2008. P.297
"The rights of gays and lesbians in Russian Federation. Report of the International Commission on Human Rights for Gays and Lesbians” prepared by Masha Gessen. Introduction L.I. Bogoraz. San Francisco. IGLHRC, 1993

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), according to which criminal liability was introduced for voluntary sexual intercourse between a man and 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 1926) on March 7, 1934 and was in force until June 3, 1993. In Soviet criminal law, sodomy was considered a crime against the person and was punishable by imprisonment for up to five years, and in 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 suspected of homosexual relations were arrested. A memo from the deputy chairman of the OGPU, Genrikh Yagoda, told Stalin about the discovery of several groups in Moscow and Leningrad, which were engaged in “creating a network of salons, hearths, dens, groups and other organized formations of pederasts with the further transformation of these associations into direct spy cells... the assets 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 the army and navy.” On the document, Joseph Stalin noted: “The scoundrels must be roughly punished, and the corresponding governing decree must be introduced into legislation.”
On December 3, 1933, Yagoda writes to the Kremlin: “Liquidating for Lately associations of pederasts in Moscow and Leningrad, the OGPU established:
The existence of salons and dens where orgies were held.
Pederasts were engaged in the recruitment and corruption of completely healthy youth, Red Army soldiers, Red Navy men and individual university students. We do not have a law under which pederasts could be prosecuted. I would consider it necessary to issue an appropriate law on criminal liability for pederasty.”

The Politburo approved this proposal almost unanimously. Only Kalinin expressed a dissenting opinion, speaking “against the publication of the law, but in favor of extrajudicial conviction through the OGPU.” Nevertheless, the law was passed, 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. Thus, Maxim Gorky on the front pages of the newspapers “Pravda” and “Izvestia” on May 23, 1934, in the article “Proletarian Humanism,” calls “homosexuality” “socially criminal and punishable” and says that “a sarcastic saying has already emerged: “Destroy homosexuality - fascism.” will disappear!'" In January 1936, People's Commissar of Justice Nikolai Krylenko stated that "homosexuality is a product of the moral decay of the exploiting classes who do not know what to do." The People's Commissar's report justified the expediency of criminal prosecution for sodomy, using rhetorical techniques of heterosexism: “In our midst, good sir, you have no place. In our environment, among the working people who stand for normal relations between the sexes, who build their society on healthy principles, we do not need gentlemen of this kind.” Later, lawyers and doctors in the USSR talked about homosexuality as a manifestation of the “moral corruption 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), according to which criminal liability was introduced for voluntary sexual intercourse between a man and a man. Soon this norm was included in the criminal codes of all Soviet republics.
The total number of people convicted under this article is unknown. 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, current maximum estimates of the number of people convicted under this article reach 250,000. Referring to data from participants in the anti-homophobia movement in Russia, he cites the number 60,000 as more realistic, based on conviction data by year (approximately 1,000 people per year, data GARF and CMAM). However, he also agrees with the opinion of Neil McKenna, who argues that it is hardly possible to find out the exact figure due to the lack of access to the necessary archives. The same figures are indicated by Valery Chalidze (magazine “The Advocate” December 3, 1991) and Sergei Shcherbakov (Collection of materials of the Conference on Sexual Cultures of Europe, Sexual Cultures in Europe, Amsterdam, 1992).

The situation of lesbians, gays, bisexuals, transgender people in the Russian Federation Kochetkov (Petrov) Igor

Criminal liability for homosexuality sexual relations

Criminal prosecution of 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 crime 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 using physical violence, threats or taking advantage of the dependent position of the victim was punished more severely than rape: imprisonment for up to eight years. Sodomy against a minor (without the use of violence) also entailed stricter penalties than heterosexual sexual intercourse with a person under puberty, and was punishable by up to eight years in prison.

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

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

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

2) despite the identification of two different crimes - rape (heterosexual sexual intercourse, Art. 131) and violent acts of a sexual nature (including sodomy and lesbianism, Art. 132), responsibility for these crimes is identical (in both cases the punishment may be deprivation freedom for a term of three to six years in the case of unqualified personnel and from four to ten years or from eight to fifteen years in the presence of qualifying characteristics, which are also formulated in the same way);

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

However, since the adoption of the Criminal Code of the Russian Federation, a number of politicians Attempts were made to amend the criminal legislation and introduce criminal liability for the promotion of homosexual relations, but none of the proposed projects was adopted.

Of particular note is the project “On introducing an amendment to the Criminal Code of the Russian Federation, providing for criminal liability for the promotion of homosexuality,” proposed by 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 means 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 draft:

Since homosexuality itself is not a criminal offense, its propaganda cannot be considered as a socially dangerous encroachment on the object of criminal legal 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 and prohibition of discrimination.

In order to ensure the protection of sexual freedom and sexual integrity of both men and women, the legislator 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 consent of the parties does not form not only a crime, but also administrative offense. In this regard, responsibility for the promotion of homosexuality cannot be established in the absence of responsibility for homosexuality itself. 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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