In a decision delivered yesterday the Hungarian Constitutional Court rejected a petition that claimed it is a constitutional omission that the Hungarian Criminal Code does not criminalize sexual relations between a person between the age of 14-18 and a person over the age of 18. In its decision the Court pointed out that the principle of non-discrimination should be observed in criminal law.
The petitioner turned to the Constitution Court in 2002 right after the Court held that that the differential age of consent for same-sex and different-sex couples is discriminatory. In its 2002 decision the Court included a sentence saying that it is up to the legislator to decide whether special rules for certain situations such as those concerning sexual activity between an adult and a minor in a hierarchical relationship should be criminalized. The petitioner picked up this sentence and asked the Court to declare it a constitutional omission that such cases are not criminalized.
In its decision delivered yesterday the Court reiterated its position held in several previous decisions that the Court has no mandate to prescribe to the legislator which acts to criminalize; prohibiting certain activities is the competence of the legislator. The Court, however, also pointed out that the principle of non-discrimination and the protection of human dignity should also be observed in criminal law. The Court thus directly refused the discriminatory intent of the petitioner, who would have only criminalized same-sex sexual activity.
Consensual sexual activity between same-sex partners has been legal in Hungary since 1962. Before 2002, however, the law contained a differential age of consent for same-sex and different-sex couples: while different sex couples were free to engage in sexual activity above the age of 14, sexual activity with a minor aged 14-18 was punishable under the name of fornication against nature. In its 2002 decision the Constitutional Court declared that “both heterosexual and homosexual orientations form part of the essence of human dignity, there must be exceptional grounds for making a distinction between them and treating differently the dignity of the persons concerned.” The Court found no such exceptional grounds in case of the age of consent and quashed the crime of fornication against nature.
The decision from yesterday is available in Hungarian on the website of the Court.