III. The legal framework and its implementation: improvements and challenges

17. Article 171 of the Criminal Code defines and sanctions rape and provides for a number of aggravating circumstances such as recidivism and age of the victim. Article 172 sanctions “homosexuality or satisfying sexual needs in perverted forms committed through the physical or mental coercion of the person or by taking advantage of the person’s incapacity to defend him or herself or to express his/her will shall be punished by imprisonment for 3 to 5 years”. The Government noted during its universal periodic review in the Human Rights Council that homosexuality among consenting adults was no longer criminalized;^[6] however, the rationale for differentiating rape (article 171) and “homosexual rape” (article 172) remains unclear. This contributes to exacerbating the bias against homosexuality, particularly of law enforcement agencies and the judicial system. In 2012, new amendments were made to the Criminal Code. Law N. 73 introduced amendments to articles 174, 175 and 175/1, which sanction sexual violence against children. These amendments increased sanctions and added an innovative clause dealing with child grooming. However, the age of children, 16, in these articles remains inconsistent with the definition of the child in the Convention on the Rights of the Child.

21. The Republic of Moldova has a solid legal framework, with crucial weaknesses that need to be addressed. For example, the Law on Ensuring Equality, which extends the protection against discrimination on many grounds also other than sex, was adopted by parliament during the Working Group’s visit to the country. Under preparation since 2007, its adoption faced strong opposition to inclusion of a ban on discrimination on grounds of gender identity and sexual orientation, often accompanied by homophobic arguments, such as that being anti-gay is part of the Moldovan identity. Such opposition led to four grounds of discrimination being deleted from the bill: health status, wealth, social origin and sexual orientation. Sexual orientation was cited as a ground for discrimination only as concerns work. This law also includes a number of exceptions evidently in tension with or possibly in direct conflict with international law. It excludes from its protection families other than those based on marriage of a man and woman, adoption in cases of homosexual relationships, and issues connected to the right to manifest religion or belief.

25. Also during the Working Group’s visit, a legislative amendment introduced article 104/1 in the Criminal Code. This article provides for chemical castration as a mandatory additional sanction in cases of rape and homosexual or perverse sexual acts committed through physical or psychological coercion against children less than 14 years of age. In cases of repeated rape or rape with grave consequences for the victim, chemical castration may be applied at the court’s discretion. The Working Group is concerned about the repressive approach of this legislation as expressed by the very nature of this additional sanction and the conditions of its application. Such sanction has been considered “invasive, irreversible and mutilating” by the European Committee for the Prevention of Torture and raises the issue of its severity and justifiability in the context of the prohibition of cruel, inhuman or degrading treatment or punishment. The amendment also constitutes a regressive measure vis-à-vis patients’ rights to informed consent on any health intervention.

V. Women in political and public life

B. Obstacles to full and equal participation

58. Women journalists who initiate and participate in public debates on issues which challenge traditional views face attacks and threats to their personal safety. Women lawyers who assist women victims of sexual offences are often accused of “defending prostitution”. A woman journalist who has written on diversity themes was recently portrayed on an internet site as a covert Islamist. Women activists who speak out in defense of the human rights of lesbians, gays, bisexual and transgender (LGBT) have items such as eggs, bottles and stones thrown at them or their offices. Outspoken Lesbian, Bisexual and Transgender (LBT) women are publicly “outed” on internet sites in an attempt at public shaming. These acts have been generally condoned by the authorities and many testify to the non-responsiveness of the police during such attacks.^[18] Some positive developments from the Government side have been reported in 2012.

59. The Working Group is concerned that LBT women are not able to enjoy the right to free assembly and association. For example, following the ban of “aggressive propaganda of non-traditional sexual orientation” and the declaration of “a support zone for the Orthodox Church” by the City Council of Bălti in March 2012, at least four other municipalities, two districts, and a village reportedly also issued similar ordinances. Legal proceedings initiated by civil society in Balti were reportedly suspended and the case was pending at the time of the visit. In the meantime, following the State Chancellery’s legal proceedings, some of these local decisions have reportedly been repealed. Further, during its visit, the Working Group noted highly discriminatory, often sexist and homophobic, remarks by members of the Moldovan leadership in the lead-up to the adoption of the Law on Ensuring Equality.^[19] These statements are viewed as condoning discrimination and serve to further polarize society.

60. The Working Group is additionally concerned about transgender women who are unable to amend identity documents following hormonal therapy or sexual correction because of court decisions which are reversed due to Government intervention. These actions deny full enjoyment of human rights.

IX. Conclusions and recommendations

B. Recommendations

88. The Working Group recommends to independent national institutions:

(a) The Council to Prevent and Combat Discrimination and Ensure Equality should develop jurisprudence and work practices in conformity with international law, and establish a comprehensive ban on discrimination covering all grounds under international law, including sexual orientation and gender identity.

(b) The Centre for Human Rights and its successor should develop a mechanism for the protection of human rights defenders, with immediate priority for Lesbian, Bisexual and Transgender (LBT) defenders and LBT women, and marginalized groups, in particular Romani women.

2. Measures to strengthen the effective protection of women’s human rights and empowerment of women

89. The Working Group recommends that the Government:

(a) Initiate a national campaign to increase public understanding and support for the elimination of discrimination against women in all fields of life, including for women migrant workers, minority women, LBT women, and all other women in positions of vulnerability, and to promote public recognition and acceptance of women’s leadership role in political and public life.

(b) Establish and sustain a process of dialogue with women in political and public life on ways and means to reconcile work and family life, including by learning from best practices in other countries, with a view to developing special measures.

(c) Support the establishment and development of independent think tanks which would improve evidence-based policy discussions and public discourse to address persistent barriers in equality and non-discrimination, including on controversial issues such as reproductive health and sexual orientation and gender identity, as well as to address blind spots in understanding such as on the situation of Romani women, women migrant workers and other women in positions of vulnerability.

Link to full text of the report: Report-WGWomen-Moldova-2013-eng