Discourses of discrimination in Austrian criminal law: the case of ‘same-sex fornication’

Discussions of diversity and homosexual acts in the context of criminal law often prove highly polarised. This paper is concerned with discourses of discrimination in criminal law, investigating the application of the legal concept of ‘same-sex fornication’ (‘gleichgeschlechtliche Unzucht’) by the Austrian Supreme Court in appeal cases between 1978 and 2014. It seeks to answer these research questions: (1) What are the underlying patterns of perception in legal discourse that legitimised the criminalisation of defendants? (2) How can critical applied legal linguistics contribute to revealing homophobic practices in criminal adjudication? It is found that the Supreme Court has largely maintained and legitimised the criminalisation of individuals engaging in sexual activity with the same sex. It is concluded that critical legal linguistics cannot solve legal problems in the domain of dogmatics, but it can, in conjunction with various other disciplines, allow for new avenues of critique based on authentic language use.