BY KATARZYNA WAZYNSKA-FINCK
On 16 April 2020, in the middle of the Coronavirus pandemic, the lower chamber of the Polish Parliament held the first reading of a bill which seeks to introduce a new crime into the Polish criminal code, namely ‘the public promotion and praise of underage sex’. Despite its controversial character, MPs did not reject the proposal, which was assigned to a legislative committee for further examination. The bill, branded as a ‘Stop paedophilia’ project, was introduced in March 2019 as a citizens’ initiative, with the support of a leading anti-abortion organisation. Its first reading during the previous term of the Polish Parliament was met with street protests, and the European Parliament adopted a resolution to express its concerns about the bill.
Polish criminal law already prohibits public praise and promotion of paedophilic acts. The projected law seeks to further criminalise ‘the public promotion and praise of minors engaging in sexual activities’. This crime would be punishable by up to two years’ imprisonment, or up to three years for its so-called ‘aggravated’ form, i.e. when committed at a school or other educational institution or within the framework of professional activities, such as teaching or provision of medical treatment.
The scope of the proposal is potentially very broad and may lead to the criminalisation of sexuality education and counselling. The bill refers to minors, which covers persons below the age of eighteen, whereas the age of consent in Poland is fifteen. Accordingly, it seeks to criminalise discussion of acts which are legal. In addition, the text refers not only to sexual intercourse, but also more broadly to engaging in ‘other sexual activities’, which may be interpreted as encompassing various kinds of intimate behaviour, including masturbation. As a result, a teacher telling a group of adolescents that masturbation is a normal behaviour and has no negative health consequences could result in criminal liability.
The campaigners behind the initiative do not conceal that their aim is to block comprehensive sexuality education, based on WHO standards, which they consider to be a tool designed to corrupt children and young people, destroy their sense of shame and natural inhibitions, and make them easy prey for sex offenders. Their rhetoric has very strong homophobic undertones. The justification for the bill deliberately confuses homosexuality with paedophilia. Comprehensive sexuality education teaches acceptance of homosexuality and for this reason is supported by LGBT groups. Parents are warned that dangerous messages may be conveyed to their children during classes with ‘innocent’ labels, such as anti-discrimination workshops or events dedicated to boosting tolerance and respect for diversity.
Sexuality education is not compulsory in Polish schools and parents need to provide their consent for their child to participate until the student turns eighteen (which leads to a nonsense situation, in which during a period of three years a person can give consent to sex, but not to learning about sex). The curriculum is quite conservative and the quality of instruction varies greatly, depending on the teacher, while students sometimes complain about the presence of gender stereotypes, homophobic and transphobic elements. In some cases, schools fail to organise adequate courses and this vacuum is often filled by NGOs dispensing sexuality education classes in schools or providing information and counselling online. These organisations fear that the adoption of the bill could make their activities illegal.
The bill must be placed in a broader context: Poland is an important forum of the so-called ‘war on gender’ and the proposed legislation is yet another battle in the war between conservative and progressive forces within the Polish society. In recent years several attempts have been made to further restrict abortion laws or limit access to contraception. These initiatives, which generated mass social mobilisation against them, enjoy the more or less overt support of the government and its crucial ally, the Polish Catholic Church. Some of the Church leaders have had recourse to very strong homophobic language in their public statements, including one of the church leaders referring to LGBT people as ‘the rainbow plague’. At the same time, sexual abuse of children by Catholic priests and the cover-up of these crimes by the Church hierarchy have become one of the main topics of public debate in recent months, accompanied by a critical examination of the Church’s approach to sexuality and its impact on Polish society.
Nevertheless, the discussions around the bill made clearly visible the predominantly negative attitudes to adolescents’ sexuality in Poland. The heated parliamentary debate focused solely on the protection of young people from sexual abuse, unwanted pregnancies and sexually transmitted diseases. Progressive MPs repeatedly resorted to the argument ‘whether we like it or not, some young people have sex’. Among the MPs opposed to the bill, only two spoke in more positive terms about the right of young people to engage in sexual relations.
It is also important to notice the shift in the strategy of the opponents of sexuality education, who rely strongly on the rhetoric of child protection. The rights of parents, who may be opposed to such education because of their religious beliefs, are mentioned only incidentally in the explanatory memorandum to the bill . The campaigners have managed to link their agenda with the protection of children’s rights, enshrined in the UN Convention on the Rights of the Child and the Polish Constitution. Of course, their focus was only on the right to be protected from sexual abuse and violence, and ignored the position of international human rights bodies on access to comprehensive sexuality education. Such a selective approach to children’s rights law requires a strong reply, but European and international standards were not sufficiently articulated in the Parliamentary debate. The debate has also shown that the discourse of children’s rights may be easily appropriated to support conservative agendas, if children’s rights are limited to their protective function and not linked with emancipation and empowerment of young people.
The project will now be examined by a legislative committee and the Parliament’s Rules of Procedure do not impose any deadlines with regard to a second reading. Controversial bills are sometimes ‘frozen’ at the committee level, if there is no political will to proceed with them. The intentions of the ruling majority are not entirely clear, but an agent of the Ministry of Justice spoke very favourably of the bill during the parliamentary debate and the Polish President has just endorsed the Family Charter, a programme document which includes ‘the protection of children from the LGBT ideology’ and echoes the rhetoric of the ‘Stop Paedophilia’ initiative.
Irrespective of the final outcome of the legislative process, the campaigners have succeeded in seeding distrust among some parents and teachers, and in portraying sexuality education as a threat to young people’s safety and well-being. The activists behind the bill encourage parents to block any initiatives at schools linked to comprehensive sexuality education and sexuality educators are already not welcome in many schools. Despite its child-protection rhetoric, the bill is likely to have devastating effects on young people, depriving them of objective, science-based knowledge about their sexuality, necessary to make conscious choices about their intimate lives, to protect their physical and mental health and limit the risk of abuse and exploitation.
Katarzyna Wazynska-Finck is a policy officer at the European Commission (currently on leave) and a PhD researcher in the Law Department of the European University Institute in Florence. Her thesis, entitled ‘Regulating child and adolescent sexuality. Vulnerability, autonomy and the duty of care’, explores how the concept of reproductive rights should be adapted to the particular needs and limitations of children as rights holders. Katarzyna holds a European Masters Degree in Human Rights and Democratisation from the European Inter-University Centre in Venice and worked for four years at the European Court of Human Rights in Strasbourg.
 The Speaker of the Chamber explained that the law required that the bill, which had been introduced during the previous term of the Parliament, but not subjected to final vote, must be read in plenary within the first six months of the new term (Articles 4.3 and 13 of the 1999 Law on the exercise of citizens’ initiative).
 As the legislative process is ongoing, the bill was automatically transferred to the new Parliament, in accordance with the 1999 Law on citizens’ initiatives.
 Article 200b of the Criminal Code.
 Other sexual act (‘inna czynność seksualna’) in Polish case law and legal doctrine has a very broad scope, and covers various forms of sexual contact, including touching and kissing.
 The campaigners frequently refer to ‘promoting masturbation’ as one of the main threats posed by sexuality education based on the WHO standards.
 This is the key argument for the bill, repeatedly raised in the explanatory memorandum, submitted to the Parliament.
 On the impact of the Catholic Church on the Polish abortion law, see: Calkin, S. and Kaminska M.E., Persistence and change in morality policy: the role of the Catholic Church in the politics of abortion in Ireland and Poland, Feminist Review, Issue 124, 86 –102.
 For example, Barbara Nowacka, a left-wing MP and a feminist activist, said that adolescents should not be punished because they want to be happy and to have fulfilling sex lives.
 The case law of the European Court of Human Rights on sexuality education is in principle framed around the conflict between the state and the parents opposing sexuality education due to their conservative religious beliefs.
 See for example, Adolescent health and development in the context of the Convention on the Rights of the Child, General Comment No.4 of the UN Committee on the Rights of the Child, 2003, paras. 26 and 28.
Image description: Participants at a protest organised by Polish feminists in Brussels in 2019, when the bill was first discussed in the Polish Parliament. Photo credit: Eugenia Andreyuk.