By Lisa Grans
In 2024, Finland speedily and explicitly criminalised several acts that were at least in part already punishable under existing provisions on assault, aggravated assault, coercion and/or human trafficking of the Criminal Code. These acts notably include forced marriage and female genital mutilation (FGM). The separate criminalisation of these acts might have been fuelled by indignation at the human rights violations involved, with the initiative to explicitly criminalise FGM originating from private citizens. Separate criminalisation was also encouraged by the GREVIO Committee monitoring the Istanbul Convention.[1] This convention requires states to undertake criminalisation of these and other acts, as well as a comprehensive set of preventive measures. In addition, victims of such acts are regarded as vulnerable due to the circumstances in which the acts take place, such as the community’s support for the measures.
Criminalisation is often, but not always, the ECtHR’s preferred means to address vulnerability on the national level,[2] see e.g. Tunikova and Others v. Russia, para 86. Whether criminal law is a sufficient response to forced marriage and FGM has been discussed for example by Askola and Gaffney-Rhys. This blog mainly deals with another form of violence, so-called conversion therapy, and focuses on Europe.
The citizens’ initiative to criminalise conversion therapy in Finland met with less enthusiasm and stalled in Parliament, but might now move forward. Conversion therapy has been defined as a set of practices that aim to change or alter an individual’s sexual orientation or gender identity. It entails acts that range from coercion to participate in ‘healing sessions’ to electric shocks and other forms of ill-treatment. Support and counselling to individuals aimed at assisting them in reflecting on the manner in which they wish to identify should not be regarded as a form of conversion therapy, as long as it does not seek to ‘cure’ their sexual orientation or gender identity (A/HRC/44/53, para. 70).[3] Conversion therapy is often aimed at young people and practised in many parts of the world, including within some Christian communities in Finland.[4] Similarly to FGM and forced marriage, a key driving force behind conversion therapy is the perceived need to restrict the sexuality of individuals so that they conform to the social norms prevailing in the community in question.
The ECtHR has found that sexual orientation is a profound part of a person’s identity, which together with gender identity is protected by Article 8 ECHR (Sousa Goucha v. Portugal, para 27). Conversion practices can also violate the prohibition of torture, or constitute degrading treatment in violation of Article 3 ECHR, and are inherently discriminatory. According to the ECtHR, certain practices are of such a character that they require a criminal law response, including acts contrary to Article 3 ECHR (Gäfgen v. Germany, para. 117).
Furthermore, Nugraha has analysed whether the CRC, the ICCPR and the CAT could be seen as requiring states to criminalise these practices. However, at present, conversion therapy is not explicitly mentioned in any international treaty nor in international case law. A number of countries have nonetheless criminalised the practice. In Europe, these countries include Belgium, Cyprus, France, Germany, Greece, Iceland, Malta, Norway, Portugal and Spain, with varying approaches to issues such as consent, applicability to adults, aggravating circumstances and sanctions. Some countries have only banned medical professionals from performing conversion therapy, leaving religious leaders free to undertake it. In the future, European standards on how to address conversion therapy might emerge, as a citizens’ initiative to ban conversion therapies in the EU is under way. However, criminalisation of conversion therapy is by no means limited to Europe.
This blog post does not dispute the necessity of criminalisation of such practices but takes issue with criminalisation being the most effective solution to address similar acts of community-supported violence. It argues that we need to reassess the approach that their primary solution is criminal law. While for example the Finnish Government Bill on explicitly criminalising forced marriage mentions the need for preventive measures to complement legislation, no additional funding for such activities has been forthcoming to reinforce the implementation of the revised Criminal Code. On the contrary, funding for NGOs doing preventive work has recently been cut. This raises questions regarding the commitment to eliminate forced marriage. The same applies to FGM.
A bold, two-fold approach of legislation and prevention would be justified also in the case of conversion therapy, as will hopefully be underlined in any Government Bill on the subject. In addition to an assessment of the possible need for new criminal law provisions, what is arguably needed is initiating a dialogue with and within religious communities in which conversion therapy is practiced, with the aim of changing attitudes towards sexual and gender minorities. There is no doubt that the issue of attitude change can be both complex and sensitive, not least in religious communities. Nevertheless, genuine efforts to eliminate these forms of violence arguably need to involve reflection of how we can stop these acts from happening in the first place, not just mete out punishment when they do. At the stage when criminal law comes into the picture – and few cases of community-supported violence actually reach the courts – the victims have already been subjected to acts that may cause severe long-term suffering. From a human rights point of view, attitude change is thus crucial. While respect for the freedom of religion is of fundamental importance, it should not be used to compromise the right of the individual to physical and mental integrity.
Lisa Grans is a Researcher in International Human Rights Law at the Institute for Human Rights, Åbo Akademi University. She currently conducts research within the project The many faces of special protection: Unpacking the roles of vulnerability in human rights and criminal law (ROVU). Her research interests focus on gender-based violence, protection of vulnerable groups, and the interaction between domestic law and international law.
[1] GREVIO, Baseline Report Finland, GREVIO/Inf(2019)9, paras. 175; 178.
[2] Corina Heri, ‘Shaping Coercive Obligations through Vulnerability: The Example of the ECtHR’ in Laurens Lavrysen and Natasa Mavronicola (eds), Coercive Human Rights: Positive Duties to Mobilise the Criminal Law under the ECHR (2020), 109.
[3] UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Practices of so-called “conversion therapy”, A/HRC/44/53.
[4] E.g. Aini Linjakumpu, Uskonnon varjot: Hengellinen väkivalta kristillissä yhteisöissä (2015).
Photo by Vidar Nordli-Mathisen on Unsplash