Sexual orientation, especially between males, has historically been met with harsh criminal sanctions. Only in this century has the issue been one of fundamental freedom and private choices. This study analyses the legal history of the concept of choice in sexual orientation in the European Commission of Human Rights (the Commission) and the European Court of Human Right (the Court), and documents the evolution of sexual orientation rights from the 1950s until today specifically focusing on why the human rights protection has changed. Until 1975 the Commission did not consider absolute criminalisation contrary to the right to respect for privacy or as discrimination, but this approach started to change in 1975. A stricter test of what is considered necessary in a democratic society led to the Dudgeon judgement in 1980 where absolute criminalisation of homosexuality was found to be contrary to the right to respect for privacy in the European Convention on Human Rights (the Convention). This judgement has largely been responsible for decriminalisation throughout the Council of Europe member-States. This decriminalisation was limited to private, adult acts that were consensual and this was the norm until 1997. In that year, unequal ages of consent also was found to be contrary to the Convention. The study showed that this evolution was facilitated mainly by a European consensus, based on the legislation of the member-States and expert knowledge. The European consensus doctrine has proven to be a very complex concept, and this study argues that a regional approach to the consensus enquiry is a better solution than the present doctrine, and solves some of the problems it has proven to cause.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:QMM.21672 |
| Date | January 1999 |
| Creators | Andersen, Jacob Strandgaard. |
| Contributors | Provost, Rene (advisor) |
| Publisher | McGill University |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Format | application/pdf |
| Coverage | Master of Laws (Institute of Comparative Law.) |
| Rights | All items in eScholarship@McGill are protected by copyright with all rights reserved unless otherwise indicated. |
| Relation | alephsysno: 001669374, proquestno: MQ50919, Theses scanned by UMI/ProQuest. |
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