In this article, the authors discuss the predicament, in Romanian society, of one group that is especially vulnerable to HIV infection and AIDS: men who have sex with men.  Such men are driven to secrecy, and discouraged from disclosing themselves even to obtain the help and information they need, because Romanian law prohibits homosexual overtures, denies legal recognition to gay and lesbian organisations, often imposes strong disincentives in the way of those seeking diagnostic tests for HIV or for venereal disease, and still penalizes same sex relations themselves in many circumstances.  Social and administrative circumstances in Romania have also aggravated such men's vulnerability.  Drawing especially on the United Nations' International Guidelines on HIV/AIDS and Human Rights, the authors offer several recommendations for reform.

        Because of their social and legal status, some groups are especially vulnerable to HIV infection; women, children, indigenous peoples, migrants and refugees, sex trade workers and injecting drug users are examples.  This research paper will focus on another such group: men who have sex with men.  It will examine the legal and ethical issues related to the treatment of such men in Romania.  Domestic cultural, legal and religious circumstances there increase the vulnerability of the members of this group and reduce the protection they derive from human rights.

Legal Status of Men Having Sex with Men
        For the last sixty years, homosexuals have been regarded, legally speaking, as criminals in Romania.  Under the title "crimes against good morals," the 1936 Penal Code penalized 'acts of sexual inversion committed between men or between women, if provoking public scandal.'  The 'public scandal' determination was not purely objective; 'public scandal' could include even 'acts of imprudence and negligence in [not] taking measures necessary to conceal these relations.'2  The 1969 Penal Code imposed a complete ban on homosexual activity, whether or not it might involve 'public scandal.'  According to Article 200, any 'sexual relations between persons of the same sex' were punishable by up to five years' imprisonment, even if they took place in private between consenting adults.  From then on, same sex relations took place in circumstances of secrecy, fear and mistrust.
        It was not until November, 1996 that Romania amended, and then only slightly, its criminal provisions concerning homosexuality, in response to pressure from the European institutions, notably the Council of Europe and the European Union.  In its 1993 opinion on Romania's application for membership in the Council of Europe, the European Parliamentary Assembly had expressed its expectation that Romania change its law such that 'Article 200 of the Penal Code will no longer consider as a criminal offence homosexual acts in private between consenting adults.'3  In a resolution dated 19 September, 1995, the European Parliament censured Romanian attempts to increase the punishment for homosexual acts.
        The new provision, now in force, makes same sex relations punishable by one to five years' imprisonment if they take place in public or result in public scandal.4  The law does not define 'public scandal'; law enforcement officials use subjective grounds exclusively when interpreting and applying the phrase.  A chief prosecutor told Human Rights Watch that 'there are no limitations.  The act can come to the awareness of the public by any means.  The revelation does not need to be willed or intended.'5  A police official stated that a homosexual couple could create a 'public scandal' just by 'mak[ing] too much noise'.6  Another chief prosecutor has said that 'our criteri[on] is the mentality of the community where the deed is committed':7 a clear indication that guilt is based on opinion, not factual evidence.  Moreover, the authorities can create a 'public scandal' by publicizing the facts of a given case.  In 1993, for example, a court found a 'public scandal' post facto, because of 'a feeling of repulsion and revulsion ... immediately upon the publication of information in the local press'.8  The law enforcement officials themselves provided the information to the press.
        Such judicial findings, even if not made on a regular basis, cause uncertainty and fear among men who have sex with men.  The result is that such men avoid any public display or disclosure of their sexual orientation.  In addition to aggravating these men's social and psychological burdens, such apprehensions and constraints impede their access to information, preventive measures, voluntary testing and counselling.  Both of these circumstances - the close interdependence between coercive and punitive measures, and the resulting reluctance to participate in programmes for HIV participation and care -increase the vulnerability of these men to HIV.
        Additional Penal Code amendments, adopted in 1996, supplemented these restrictions with further prohibitions.  Article 200, paragraph 5 now prohibits, with a penalty of up to five years' imprisonment, any act of 'inciting or encouraging a person to the practice of same sex sexual relations, as well as propaganda, association or other act of proselytizing with the same scope': in effect, an outright ban on association and expression in the course, or in support, of same sex relations.  Strictly speaking, ordinary places where homosexuals meet (e.g., bars or offices) would contravene this law.  Gays and lesbians also risk criminal sanctions when they act in concert to achieve common goals, because Romanian law denies legal recognition to the non-governmental organisations they seek to establish.9  Denying gay men and lesbians the opportunity to organise and act cooperatively further limits their access to information on HIV/AIDS; it leaves them no choice except to try to obtain it individually.
        Penal Code measures that proscribe gay and lesbian organisations and prohibit men who have sex with mean from speaking in public violate, in our view, the freedoms of expression and association guaranteed by international instruments that Romania itself has signed or ratified.10  They are, moreover, contrary to the International Guidelines on HIV/AIDS and Human Rights, published by the UN High Commissioner on Human Rights and the Joint UN Programme on HIV/AIDS, which urge governments to provide effective measures for the protection of high risk groups, including men who have sex with men (see Annex III).
        In the Toonen decision, the United Nations Human Rights Committee took the position that the references to "sex" in Articles 2, paragraph 1, and 26 of the International Covenant on Civil and Political Rights should be taken to include sexual orientation.11  It added that 'the criminalisation of homosexual practices cannot be considered reasonable means or a proportionate measure to achieve the aim of preventing the spread of AIDS/HIV.'  In discussing the specific complaint, the Committee noted that
        . . . 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.'
Criminalisation of homosexual activity, in other words, appears to run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention.  Finally, the Committee observed, there was no evidence demonstrating that continued criminalisation of homosexual activity resulted in effective control of the spread of HIV infection.
        Romania is now considering changes to its criminal law.  Two proposals aimed at repealing Article 200 have emerged: one by ACCEPT, a non-governmental organisation, the other by the Ministry of Justice.  The Romanian Government adopted the Ministry's proposal12 and sent it to the Chambers of Deputies, where it needed a qualified majority for approval.  On June 30, 1998, it failed by a margin of five votes.  The fact that many, though not quite enough, of the deputies voted for the proposal demonstrates a significant change in legislators' attitudes since November, 1996.  At this writing, it seems likely that the proposal will be considered again before the end of 1998.  The wide spectrum of views expressed by various parliamentarians makes the outcome of a second vote unpredictable.
        Another factor that increases the vulnerability of men who have sex with men to HIV infection and to the impact of AIDS is the lack of legal protection available to them against discrimination.  Same sex marriages receive no legal recognition; same sex relationships are not protected by the usual rules about property and inheritance.  No change is likely for the foreseeable future.
        Men who have sex with men are also apt to be implicated in the transmission of HIV or venereal disease.  Article 309 of the Penal Code penalizes with six months' to three years' imprisonment 'transmission of a venereal disease through sexual relations, through sexual relations with persons of the same sex, or through an act of sexual perversion, by a person who knows him/herself to suffer from such a disease.'  Since November, 1996, transmission of 'AIDS, by a person who knows him/herself to suffer from this disease' has also been an offence, punishable by imprisonment for five to fifteen years.13  Such provisions are inconsistent with the UN International Guidelines on HIV/AIDS, which suggest that 'criminal and/or public health legislation should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases.'14  Still more disturbing, these provisions make no allowance for such basic criminal law determinations as consent, intent or foreseeability.  There is no assurance, therefore, that courts will even consider these elements in determining guilt or innocence or in sentencing.  To the best of our knowledge, there is no one yet serving a sentence for HIV transmission;15 the mere existence of such a crime, however, is inconsistent with international human rights law and incompatible with the supportive environment needed to address existing prejudices and inequalities.
        In addition, some medical units require those seeking diagnostic tests for venereal disease to sign prepared forms - even before they receive their test results - admitting to having been informed that they suffer from a particular venereal disease and about the prohibitions, mentioned above, in Article 309 of the Penal Code.  These forms also refer to a 1953 Decree, which requires that those infected disclose the identity of all their sexual partners.16  We have good reason to believe that those being tested for HIV are required to sign identical forms.
        Such coercive measures undermine public confidence in the health care system and create fear of punishment and disclosure.  The effect is to discourage those most in need of medical services and to frustrate the goals of prevention through health care, support and behavioural change.  Since 1986, for example, Romania has recorded only 28 cases of HIV infection among gay people.  We assume the real number is much higher.17
        Romania's Penal Code gives courts the power and the duty to require infected persons to undergo mandatory medical treatment.18  Failure to comply with this requirement is itself a crime, punishable by fine or by three months' to one year's imprisonment.19  Treatment involves mandatory testing for venereal diseases and for HIV, in spite of the generally accepted rule that such testing requires prior consent.
        In conclusion, neither the criminal law nor Romanian judicial practice encourages the promotion or protection of human rights in the context of HIV/AIDS or creates a supportive environment for HIV/AIDS prevention initiatives.

Social Status of Men Having Sex with Men: Ethical Issues
        When the Council of Europe raised the issue of homosexuality in 1993,20 the Romanian Government said in response that 'acts of this kind are alien to the Romanian people's mentality, and offend the general moral feeling and religious conscience of the majority of the population.'  That response, unfortunately, reflected the majority view on the issue at the time.
        The Orthodox Church has helped to preserve this attitude by campaigning aggressively and publicly against same-sex relations. The Patriarch has regularly condemned 'acceptance of the degrading abnormal and unnatural as a natural and legal lifestyle.'21
        No comparably influential institution has taken the opposite view.  Some individuals and small groups do speak out from time to time, but they do not have the same impact; those in the majority continue to regard themselves as keepers of the truth and feel entitled to impose their will on the 'blameable' minority.  The unavailability - characteristic of the Communist era - of information and education concerning sexual life, sexual orientation and same sex relations continues to make it more difficult to eliminate prejudice.  Romanian politicians and government bodies have failed to initiate and maintain coherent dialogue or consistent positions about same sex relations with either the majority or the sexual minority communities.  Instead, they have responded only to international pressure (from, e.g., the Council of Europe) or to domestic pressure (e.g., during electoral campaigns).  In the meantime, the political discourse on sexual minorities, including their vulnerability to HIV and AIDS, has been extremely poor and isolated. Those politicians friendly to gay concerns avoid public commitment, knowing that the issue is still unpopular.
        The media, and the press in particular, have also contributed to the perpetuation of existing prejudice.  Homosexuals have been described in print as people with high criminal potential and the extremist press has played the nationalistic card, identifying homosexuality as 'a corrupt incursion alien to indigenous values.'22  More recently, the press has been taking less extreme positions; there are, however, still articles in which criminals are portrayed as homosexuals, inviting a substantive link between the two terms.  It is noteworthy that the broadcasting media - in particular, national television - has responded differently, recently promoting serious and adequate public debates on tolerance and homosexuality, especially after the negative vote in the Chamber of Deputies.
        The public at large, however, continues to stigmatise men who have sex with men and to blame them for the proliferation of HIV.  Homosexuals are often regarded as AIDS internal agents; the legal treatment they receive is typically justified by the need to monitor and control disease transmission.  This is so despite the well-known fact, so frequently overlooked by law enforcement officials and many Romanians generally, that HIV, in Romania, has mostly affected children.  In a primitive way, and contrary to reason, many people still think that punishing men who have sex with men will eradicate AIDS.
        Publications eager for scandal often reveal a person's HIV status and treat AIDS as a shameful disease, one substantially related to men who have sex with men.23  The press obtains the information from the police or from medical staff who breach confidentiality, quite often and with impunity.  Despite the International Guidelines,24 the Romanian press is subject to no professional or ethical rules that protect the confidentiality of the personal data of individuals infected with HIV.
        School education still avoids addressing effectively the issues of sexual orientation, protection against venereal diseases and HIV infection.  At this writing, the Ministry of Education does not have a coherent policy on these issues; the decisions, therefore remain with individual teachers, who typically lack either the knowledge or the disposition to deal with issues of sexual identity or with the medical and ethical issues relating to HIV/AIDS.  The Youth for Youth Foundation has prepared a manual for teachers that includes a chapter on sexuality.  It is reported that volunteers as well as teachers still hesitate to make use of it.25
        None of the non-governmental organizations working in the field of reproductive health has developed or offered specific programs for men who have sex with men as a group highly vulnerable to HIV infection.  Such men do benefit, however, from a HOT-LINE counselling service provided by the Romanian Association Anti-AIDS (ARAS).26  It has been suggested that these men take HIV more seriously than heterosexuals, are eager to protect themselves and look for counselling.27   This is more likely to be true, however, of those living in urban than in rural areas, because those in urban areas have much greater access to information and rural areas are, as a rule, more conservative.

Administrative and Civil Remedies
        Contrary to recommendations in the International Guidelines,28 the Romanian legal system does not provide for independent, speedy and effective legal and administrative procedures for those seeking redress.  The general procedural rules apply; previous experience shows that they are lengthy and ineffective.  In addition, the Romanian legal system does not countenance representative complaints - public interest organisations, for instance, may not bring cases on behalf of individuals living with HIV/AIDS - or cases brought to court using pseudonyms.

Government Policy
        In 1994, the Health Ministry established an Inter-Ministerial Committee on HIV/AIDS.  From then until 1996, its members met two to three times a year; at the end of 1996 it stopped functioning, without having generated any policy concerning HIV/AIDS.  At present, the only official government body concerned with HIV/AIDS is the Medical Commission, operating under the Ministry of Health.
        An informal inter-ministerial commission is in operation, however, as a result of the efforts of the UNAIDS Office in Bucharest.  Its members are directors drawn from a broad range of ministries, including Health, Interior, National Defence, Youth and Sports, Education, Justice, Work and Social Protection, and representatives of the Governmental Department of the Protection of Children and of the State Secretariat for People with Handicaps.  Its members met four times in the first seven months of 1998 and decided to form working groups.  It has a consultative role to the Government and is designed to elaborate and co-ordinate the national strategy on HIV/AIDS.

Recommendations
        Reform is urgently needed on all these fronts if men who have sex with men are to have the full protection of human rights in the context of HIV/AIDS.  Government and non-governmental organisations both have roles in initiating and implementing appropriate public policies.  Some legislative change is also essential.  These are some of the most important reforms.
1.      eliminate all legal provisions that can be used to punish individuals for consensual private homosexual acts between adults or that permit, encourage or enforce discrimination based on an individual's perceived sexual orientation.  Repeal, in particular, Article 200 of the Penal Code;
2.      eliminate Article 309, paragraphs 2 and 3, of the Penal Code, which penalise the transmission of HIV and involve mandatory testing, irrespective of consent.  In the alternative, amend the existing law so as to ensure that foreseeability, intent and consent are taken into account when determining criminal liability on these grounds;
3.      adopt, for both public and private sectors, anti-discrimination laws that protect vulnerable groups and people living with HIV/AIDS, including men who have sex with men;
4.      adopt procedural rules allowing for speedy and effective administrative and civil remedies, by amending the Criminal and Civil Procedure Codes or by adopting special rules designed specifically to expedite cases involving HIV/AIDS issues and parties;
5.      address underlying prejudices and discrimination through education programs in schools and community dialogue, to help create a more supportive environment for such vulnerable groups as men who have sex with men.  One way would be to address sexual orientation issues in the human biology curriculum and to provide classes in Civic Education that encourage tolerance of 'difference.'  This is a task for the Ministry of the National Education, possibly in co-operation with non-governmental human rights organisations;
6.      promote media training, explicitly designed to discourage attitudes of discrimination and stigmatisation towards men who have sex with men, especially in respect of HIV/AIDS.  Encourage the media to adopt rules of conduct that prohibit disclosure of confidential patient information.  Involve journalists' own professional organisations;
7.      seek actively among law enforcement officials and the judiciary to change attitudes that stigmatise and discriminate against men who have sex with men.  Offer courses on civic education, human rights and tolerance in the schools and at the Police Academy;
8.      give legal recognition to same sex marriages and extend to same sex relationships the law's protection in matters of property and inheritance, in order to reduce the vulnerability to HIV infection of men who have sex with men and the impact of HIV/AIDS generally;
9.      amend legal aid regulations to ensure provision of free legal services to people affected by HIV/AIDS.

ANNEX I

EXTRACTS OF ROMANIAN LAW
Article 431 of the 1936 Penal Code:
        Acts of sexual inversion committed between men or between women, if provoking public scandal, are punished by six months' to two years' imprisonment.

Article 200 of the 1969 Penal Code:
        Sexual relations between persons of the same sex are punishable by one to five years' imprisonment.

Article 200 as amended by Law no. 140/1996 (published in the "Official Gazette" on 14 November 1996):
        Paragraph 1. Same sex relations taking place in public or resulting in public scandal shall be punished by one to five years' imprisonment.

        Paragraph 5. Inciting or encouraging a person a person to the practice of the same sex relations, as well as propaganda, association or other act of proselytising with the same scope shall be punished by one to five years' imprisonment.

Article 309 of the Penal Code (in force)
        Paragraph 1. Transmission of a venereal disease through sexual relations, through sexual relations with persons of the same sex, or through an act of sexual perversion, by a person who knows him/herself to suffer from such a disease shall be punished by imprisonment for from six months to three years.

        Paragraph 2. Transmission of HIV/AIDS by a person who knows him/herself to suffer from this disease shall be punished by imprisonment for from five to fifteen years.

        Paragraph 3. The court shall order the safety measure of mandatory treatment.

Persons and organisations contacted while preparing the paper

Manuela Stefanescu - Co-president, The Romanian Helsinki Committee, Bucharest
Michael Holscher - Coordinator, PSI (Population Services International), Bucharest
Galina Musat - Program Coordinator, ARAS (The Romanian Anti AIDS Association), Bucharest
Bogdan Derianu, Program Coordinator, FTT (Youth for Youth Foundation), Bucharest
Borbala Koo, President. SECS (The Society for Sexual and Contraceptive Education), Bucharest
Dr. Pecec, The Bucharest Central Laboratory for Blood Transmitted Viruses
Marie Stops Foundation, Bucharest
Carmen Husiu, AURA Foundation, Bucharest
Pro VOBIS, Cluj-Napoca
Tim Schaftter, Health Officer, UNICEF Bucharest
Daniela Draghici, Project Manager, Policy Project - CEDPA, Bucharest
Eduard Petrescu, UNAIDS Country Programme Adviser, Bucharest
Prof. Bernard M. Dickens, University of Toronto
Dr. Aart Hendriks, University of Amsterdam

International Guidelines on HIV/AIDS and Human Rights

Guideline 1
States should establish an effective national framework for their response to HIV/AIDS, which ensures a coordinated, participatory, transparent and accountable approach, integrating HIV/AIDS policy and programme responsibilities across all branches of Government.

Guideline 2
States should ensure, through political and financial support, that community consultation occurs in all phases of HIV/AIDS policy design, programme implementation and evaluation and that community organizations are enabled to carry out their activities, including in the field of ethics, law and human rights, effectively.

Guideline 3
States should review and reform public health laws to ensure that they adequately address public health issues raised by HIV/AIDS, that their provisions applicable to casually transmitted diseases are not inappropriately applied to HIV/AIDS and that they are consistent with international human rights obligations.

Guideline 4
States should review and reform criminal laws and correctional systems to ensure that they are consistent with international human rights obligations and are not misused in the context of HIV/AIDS or targeted against vulnerable groups.

Guideline 5
States should enact or strengthen anti-discrimination and other protective laws that protect vulnerable groups, people living with HIV/AIDS and people with disabilities from discrimination in both the public and private sectors, ensure privacy and confidentiality and ethics in research involving human subjects, emphasise education and conciliation, and provide for speedy and effective administrative and civil remedies.

Guideline 6
States should enact legislation to provide for the regulation of HIV-related goods, services and information, so as to ensure widespread availability of qualitative prevention measures and services, adequate HIV prevention and care information and safe and effective medication at an affordable price.

Guideline 7
States should implement and support legal support services that will educate people affected by HIV/AIDS about their rights, provide free legal services to enforce those rights, develop expertise on HIV-related legal issues and utilise means of protection in addition to the courts, such as offices of ministries of justice, ombudspersons, health complaint units and human rights commissions.

Guideline 8
States, in collaboration with and through the community, should promote a supportive and enabling environment for women, children and other vulnerable groups by addressing underlying prejudices and inequalities through community dialogue, specially designed social and health services and support to community groups.

Guideline 9
States should promote the wide and ongoing distribution of creative education, training and media programmes explicitly designed to change attitudes of discrimination and stigmatisation associated with HIV/AIDS to understanding and acceptance.

Guideline 10
States should ensure that government and private sectors develop codes of conduct regarding HIV/AIDS issues that translate human rights principles into codes of professional responsibility and practice, with accompanying mechanisms to implement and enforce these codes.

Guideline 11
States should ensure monitoring and enforcement mechanisms to guarantee the protection of HIV-related human rights, including those of people living with HIV/AIDS, their families and communities.

Guideline 12
States should cooperate through all relevant programmes and agencies of the United Nations system, including UNAIDS, to share knowledge and experience concerning HIV-related human rights issues and should ensure effective mechanisms to protect human rights in the context of HIV/AIDS at international level.

Second International Consultation on HIV/AIDS and Human Rights (Geneva, 23-25 September 1996): Report of the Secretary General (E/CN.4/1997/37), available on the UNAIDS Web site (www.unaids.org).  HIV/AIDS and Human Rights: International Guidelines (UNAIDS and the Office of the High Commissioner for Human Rights: Geneva, 1998) HR/PUB/98/1.  (This publication contains explanatory and background materials.)  Available in six UN languages.

1 The authors gratefully acknowledge the financial contribution made toward this research by the Joint United Nations Programme on HIV/AIDS (UNAIDS).  The findings, interpretations and views expressed are entirely those of the authors and do not necessarily reflect the official policy or positions of UNAIDS.
2 V. Papadopol, I. Stoenescu and G.V. Protopopescu, eds., Codul Penal al Republicii Populare România Adnotat, Editura de Stat, Bucuresti, 1948, at 462.
3 Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, "Draft opinion on the application for membership to the Council of Europe submitted by Romania", appendix II, AS/Jur (44)74, Strasbourg, 1993.
4 Article 200, paragraph 1.
5 Interview by Long cited in Public Scandals: Sexual Orientation and the Law in Romania (Human Rights Watch,  International Gay & Lesbian Human Rights Commission: New York, 1998), ISBN: 1-56432-178-9, at 41.
6 Id.
7 Id.
8 Id.
9 In an effort to circumvent this restriction, "ACCEPT," a human rights group of gays, lesbians and their supporters, has registered as a general human rights organization, omitting any mention in its registration papers of "sexual minorities" or "homosexuality."
10 Universal Declaration of Human Rights; International Covenant on Civil and Political Rights; European Convention of Human Rights, and all the major instruments adopted by the OSCE.
11 Human Rights Committee, Communication No. 488/1992. (Toonen v Australia).
12 In addition to changing the provisions pertaining to homosexuals, the Ministry's proposal would amend other media-related criminal law provisions and reduce the scope of journalists' criminal liability.
13 Article 309, paragraph 2.
14 Guideline 4. See Annex III.
15 Human Rights Watch Report, 1998, ISSN: 1079-1876, at 90.
16 One member of "ACCEPT" had to sign such a form to obtain a syphilis test in a medical unit in Bucharest in 1998.  A copy of this form was provided to the authors of this paper.
17 Data provided by the Eduard Petrescu, UNAIDS Romania.
18 Penal Code, Article 309, paragraph 3.
19 Penal Code, Article 309, paragraph 1.
20 Supra footnote 3.
21 Evenimentul Zilei, December 16, 1993.
22 Human Rights Watch Report, 1998, ISSN: 1079-1876, at 35.
23 Id., at 88-90.
24 Guideline 5. See Annex III.
25 Interview by Adrian Coman with Bogdan Derianu, program co-ordinator, June 1998.
26 Interview by Adrian Coman with Galina Musat, ARAS program co-ordinator, June, 1998.
27 Id.
28 Guideline 5.  See Annex III.