Amongst the private relationships protected by the right to privacy are sexual relationships. How one expresses one’s sexuality is an integral part of private intimacy and autonomy. Both the Human Rights Committee and the European Court have treated sexual life as an integral part of one’s privacy and in recent years ruled that laws prohibiting homosexual acts constitute an unjustifiable interference with the right to respect for private life. In Dudgeon v. The United Kingdom (Application No.7525/76, Judgement of 22 October 1981) the European Court found criminal laws prohibiting consensual homosexual acts between adults violated the right to respect for private life and went on in Norris v. Ireland to state that ‘Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved’. In Modinos v. Cyprus (Application No. 15070/89, Judgement of 22 April 1993) the Court reiterated that it considered any law criminalising consensual homosexual acts in violation of the right to respect for private life. The Human Rights Committee dealt with criminalisation of homosexual acts in Toonen v. Australia (see also see also equality and non-discrimination, Discrimination on grounds of sexual orientation).
Human Rights Committee
Communication No. 488/1992
Views of 31 March 1994
Keywords: homosexuality - private life - non-discrimination - non-prohibition of discrimination on the ground of sexual orientation
The facts as submitted by the author:
2.1 The author is an activist for the promotion of the rights of homosexuals in Tasmania, one of Australia’s six constitutive states. He challenges two provisions of the Tasmanian Criminal Code, namely Sections 122(a) and (c) and 123, which criminalize various forms of sexual contacts between men, including all forms of sexual contacts between consenting adult homosexual men in private.
2.2 The author observes that the above sections of the Tasmanian Criminal Code empower Tasmanian police officers to investigate intimate aspects of his private life and to detain him, if they have reason to believe that he is involved in sexual activities which contravene the above sections. He adds that the Director of Public Prosecutions announced, in August 1988, that proceedings pursuant to Sections 122(a), (c) and 123 would be initiated if there was sufficient evidence of the commission of a crime.
2.3 Although in practice the Tasmanian police has not charged anyone either with “unnatural sexual intercourse” or “intercourse against nature” (Section 122) nor with “indecent practice between male persons” (Section 123) for several years, the author argues that because of his long-term relationship with another man, his active lobbying of Tasmanian politicians and the reports about his activities in the local media, and because of his activities as a gay rights activist and gay HIV/AIDS worker, his private life and his liberty are threatened by the continued existence of Sections 122(a), (c) and 123 of the Criminal Code.
2.4 Mr. Toonen further argues that the criminalization of homosexuality in private has not permitted him to expose openly his sexuality and to publicize his views on reform of the relevant laws on sexual matters, as he felt that this would have been extremely prejudicial to his employment. In this context, he contends that Sections 122(a), (c) and 123 have created the conditions for discrimination in employment, constant stigmatization, vilification, threats of physical violence and the violation of basic democratic rights.
2.6 The author further argues that Tasmania has witnessed, and continues to witness, a “campaign of official and unofficial hatred” against homosexuals and lesbians. This campaign has made it difficult for the Tasmanian Gay Law Reform Group to disseminate information about its activities and advocate the decriminalization of homosexuality. Thus, in September 1988, for example, the TGLRG was refused permission to put up a stand in a public square in the city of Hobart, and the author claims that he, as a leading protester against the ban, was subjected to police intimidation.
2.7 Finally, the author argues that the continued existence of Sections 122(a), (c) and 123 of the Criminal Code of Tasmania continue to have profound and harmful impacts on many people in Tasmania, including himself, in that it fuels discrimination and harassment of, and violence against, the homosexual community of Tasmania.
3.1 The author affirms that Sections 122 and 123 of the Tasmanian Criminal Code violate articles 2, paragraphs 1, 17 and 26 of the Covenant because:
(a) they do not distinguish between sexual activity in private and sexual activity in public and bring private activity into the public domain. In their enforcement, these provisions result in a violation of the right to privacy, since they enable the police to enter a household on the mere suspicion that two consenting adult homosexual men may be committing a criminal offence. Given the stigma attached to homosexuality in Australian society (and especially in Tasmania), the violation of the right to privacy may lead to unlawful attacks on the honour and the reputation of the individuals concerned.
(b) they distinguish between individuals in the exercise of their right to privacy on the basis of sexual activity, sexual orientation and sexual identity, and
(c) the Tasmanian Criminal Code does not outlaw any form of homosexual activity between consenting homosexual women in private and only some forms of consenting heterosexual activity between adult men and women in private. That the laws in question are not currently enforced by the judicial authorities of Tasmania should not be taken to mean that homosexual men in Tasmania enjoy effective equality under the law.
3.2 For the author, the only remedy for the rights infringed by Sections 122(a), (c) and 123 of the Criminal Code through the criminalization of all forms of sexual activity between consenting adult homosexual men in private would be the repeal of these provisions.
Examination of the merits:
8.1 The Committee is called upon to determine whether Mr. Toonen has been the victim of an unlawful or arbitrary interference with his privacy, contrary to article 17, paragraph 1, and whether he has been discriminated against in his right to equal protection of the law, contrary to article 26.
8.2 Inasmuch as article 17 is concerned, it is undisputed that adult consensual sexual activity in private is covered by the concept of “privacy”, and that Mr. Toonen is actually and currently affected by the continued existence of the Tasmanian laws. The Committee considers that Sections 122(a), (c) and 123 of the Tasmanian Criminal Code “interfere” with the author’s privacy, even if these provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future, particularly in the light of undisputed statements of the Director of Public Prosecutions of Tasmania in 1988 and those of members of the Tasmanian Parliament. The continued existence of the challenged provisions therefore continuously and directly “interferes” with the author’s privacy.
8.3 The prohibition against private homosexual behaviour is provided for by law, namely, Sections 122 and 123 of the Tasmanian Criminal Code. As to whether it may be deemed arbitrary, the Committee recalls that pursuant to its General Comment 16 on article 17, the “introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances”.(4) The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.
8.4 While the State party acknowledges that the impugned provisions constitute an arbitrary interference with Mr. Toonen’s privacy, the Tasmanian authorities submit that the challenged laws are justified on public health and moral grounds, as they are intended in part to prevent the spread of HIV/AIDS in Tasmania, and because, in the absence of specific limitation clauses in article 17, moral issues must be deemed a matter for domestic decision.
8.5 As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. The Australian Government observes that statutes criminalizing homosexual activity tend to impede public health programmes “by driving underground many of the people at the risk of infection”. Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus.
8.6 The Committee cannot accept either that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee’s scrutiny a potentially large number of statutes interfering with privacy. It further notes that with the exception of Tasmania, all laws criminalizing homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether Sections 122 and 123 should not also be repealed. Considering further that these provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in Tasmania, the Committee concludes that the provisions do not meet the “reasonableness” test in the circumstances of the case, and that they arbitrarily interfere with Mr. Toonen’s right under article 17, paragraph 1.
8.7 The State party has sought the Committee’s guidance as to whether sexual orientation may be considered an “other status” for the purposes of article 26. The same issue could arise under article 2, paragraph 1, of the Covenant. The Committee confines itself to noting, however, that in its view the reference to “sex” in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant.
In this case the Human Rights Committee established, like the European Court, that criminalisation of homosexual acts of consenting adults violated the right to respect for private life, and that ‘it is undisputed that adult consensual sexual activity in private is covered by the concept of “privacy”’. The Committee found that the legislation constituted interference in violation of Article 17 even though it had not been directly applied in the case of the applicant.
Not all interference in private sexual life constitutes a violation of the right to privacy. In Laskey, Jaggard and Brown v. The United Kingdom (Application Nos. 21627/93, 21826/93, 21974/93, Judgement of 19 February 1997), the European Court found that the convictions of several homosexual men for assault because of bodily harm that was the result of consensual sado-masochistic sexual activities did not violate the right to respect for private life. The Court reiterated that sexual activity concerns ‘an intimate aspect of private life’ but that as ‘a considerable number of people were involved in the activities in question which included, inter alia, recruitment of new ‘members’, the provision of several specially-equipped ‘chambers’, and the shooting of many video-tapes which were distributed among the ‘members’’, it was questionable whether the sexual activities of the applicants in the case fell within the sphere of ‘private life’. The Court went on to find that the interferences under Article 8 were justified as ‘necessary in a democratic society’ for the protection of health.
In relation to homosexuality, the Human Rights Committee has ruled that the mere non-recognition of same-sex marriage does not constitute a violation of the right to privacy. In Joslin et al. v. New Zealand (Communication No. 902/1999, Views of 17 July 2002) the applicants, who are lesbians, claimed, inter alia, that ‘the restriction of marriage to heterosexual couples violates the authors’ rights to family and privacy’ but the Committee decided that no violation had taken place as ‘in light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23, paragraphs 1 and 2, or 26 of the Covenant.’