Why challenge criminalization of sexuality

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Why challenge criminalization of sexuality

The global movement to promote sexual and reproductive health and rights has significantly advanced over the last two decades. At the same time, rights recognitions have generally advanced through discrete, issue-based initiatives. As a result, the development of human rights standards and the realization of rights related to sexuality and reproduction has been uneven, specialized and narrow, and fragmented. In recent years, legal and policy advocacy has promoted reform in a way that empowers the state to legislate on aspects of sexuality, including sexual identity, conduct, expression and reproduction – sometimes expanding rights protections, but sometimes putting rights at risk.

Criminalization based on gender and sexuality significantly hampers sexual and reproductive rights. While activists may perceive all law and policy advocacy as a means to effectively protect women, prevent violence and promote healthy sexual and reproductive conduct, criminal laws are often ineffective at protecting individuals and changing conduct. In fact, they may have the unintended effect of harming the very individuals whose rights they intended to protect. Laws, policies and regulations may also enable the state to punish consensual sexual conduct and autonomous reproductive choices. Criminalization behavior, practices and identities that cause no harm has the effect of limiting access to sexual and reproductive health and rights related health services, impedes access to information and education related to sexuality, reinforces stigmatization of certain sexualities and reproductive choices, and condones their repression by state and non-state actors.

It is in this context that this article calls for an urgent dialogue on our approaches to legal and social reform. It raises questions about whether our movements ought to reconsider using the law (especially criminal law) as an instrument of justice and a driver of social change, since evidence suggests that the result is rarely the justice we are seeking. it explores the meaning of gender and sexuality based criminalization, the impact of criminalization of consensual sexual conduct and autonomous choices, and suggests a way forward.

Criminalization and penalization of gender and sexuality

In the context of gender and sexuality, criminalization and penalization is the process by which the state and the society label certain behaviors and people as criminals for their gender identity and expression, their choices related to sexuality such as the gender or marital status of their sexual partners, and their reproductive decisions.

In patriarchal societies, strict rules of acceptable and unacceptable sexualities, gender roles and expressions, and legitimate and illegitimate relationships for reproduction are used to reinforce and reproduce dominant relations of power between genders, classes, castes, etc. These rules are often justified as being necessary to safeguard social ‘morality,’ tradition, and even to protect women. Some types of consensual sex such as in sex work, between persons of the same sex, or involving persons considered as incapable of consenting to sex such as  young people or women with disabilities, are policed and penalized in many societies. These societies may also heavily regulate the availability of health services, such as contraception and abortion, or HIV prevention, testing, treatment, care and support, despite the fact that these enable greater control over sexuality related decision making for young people and people living with disabilities, along with all others.

Traditionally, the term ‘criminalization’ is understood with reference to state-made laws, and corresponding state-imposed punishments of incarceration, fines, or other penalties. However, social norms can also render certain behaviors and people as ‘criminal,’ and they may be implemented through extra-legal sanctions that are equally forceful. These may include social ostracization and boycott, and even extreme forms of violence. The law reflects the predominant norms in society, and thus socially acceptable rules of sexuality often overlap with legally approved gender and sexuality related behaviours.

Criminal sanctions and incarceration are the most stringent forms of punitive action that can be taken by the state. International law places limits on the states’ power to treat certain actions as criminal. It also imposes an obligation upon states to respect all human rights without discrimination on the basis of gender, gender identity, or sexual orientation. However, states do not always respect these limits and obligations. As a result, there are state-made laws across the world that arbitrarily criminalize behaviors, individuals, or communities considered as ‘wrong’, ‘bad’ and ‘illegal’ even when no one is harmed. These laws often either target a community explicitly or are disproportionately used against them.

For example, same-sex sexual conduct is considered a criminal offense in Pakistan and Bangladesh. As a result, same-sex behavior (sex between people of the same gender) is categorized as ‘illegal,’ and the people engaging in such sexual practices are considred to be criminals because of their sexual behavior or identities. On the other hand, even though homosexuality has been decriminalized in India and Nepal, people engaging in same-sex conduct continue to be treated like ‘criminals’ by the society, as the social disapproval of and punishment for same-sex conduct are deeply entrenched in society and culture. Other forms of gender and sexuality-based criminalization include the legal prohibition on abortion, sex outside of marriage, sex work, and the social dictate against inter-religious and inter-caste marriages.

Impact of taking punitive approaches to sexuality

The choice to transgress rules related to sexuality is considered a crime and the people who transgress them bear various adverse consequences for doing so. Such forms of criminalization are violative of international law and infringe a range of civil, political, economic, social and cultural rights of those rendered as ‘criminals.’

Gender and sexuality-based criminalization can result in arbitrary police action and prosecution. People rendered as ‘criminal’ often experience a loss of family support, face contempt and hatred from the society, and are vulnerable to stigmatization and stereotyping, persecution, harassment, and discrimination in accessing basic rights and state services. Gender and sexuality-based discrimination in access to human rights has the long-term effect of social and economic marginalization, as well as having negative health consequences.

For example, many countries either outlaw sex work completely, or criminalize various activities related to it, such as soliciting clients in public places. An increasing conflation of sex work with trafficking, and a severe and punitive approach to the latter means that sex workers are considered offendors in need of correction, and at the same time victims in need of rescue and rehabilitation. This also makes them vulnerable to abuse by state and non-state actors, impacts their ability to access health services such as contraception,  abortion and HIV services, report and access legal remedies for sexual assault, and work in safe conditions.

Expression of sexuality by young people, especially outside of marriage, is also criminalized in various countries in South Asia. In some parts of India, caste panchayats (khap panchayats) severely punish such acts, especially when they transgress religious or caste boundaries. A combination of punitive laws that criminalize sexual expression of young people and stigmatization of their sexuality and pre-marital sex can make it difficult for them to access contraceptives, information about sexual health, and sexual health services.

Access to sexual and reproductive health services is further hindered by the criminalization of abortion in some countries. Even where it is not completely prohibited, the legal limits within which abortion is permitted are often narrow, and inconsistent with current standards of medical practice. The use of criminal law drives women and young girls towards illegal and often unsafe abortions, and puts them and health care providers at risk of prosecution.

On the other hand, the sexuality of women with disabilities is completely repressed. The law enforces asexuality upon women with disabilities, especially psycho-social disabilities, by rendering them incapable of consenting to sexual activity. As a result, women with disabilities find it difficult to access sexual and reproductive health services, and may in some cases be forced to undergo sterilization procedures.  Women and young people living with HIV also face barriers to accessing care, and often experience forced sterilization or abortion at the hands of those who are supposed to secure their health.

International legal standards

Laws that criminalize consensual sex, such as same-sex sexual conduct, or sex outside marriage violate basic human rights such as the right to equality, and the right to non-discrimination on the basis of sex, gender identity and sexual orientation.  Criminalization also condones arbitrary state action, and erodes protections against arbitrary deprivation of life and liberty, and cruel, inhuman and degrading treatment. States have a legal obligation to repeal such laws, and prevent non-state actors from penalizing consensual sex and autonomous reproductive choices.

In the last decade, treaty bodies and special procedures of the United Nations along with some regional human rights institutions have increasingly called for the decriminalization of consensual sex between same-sex partners and outside marriage, sex work, abortion, and transgender identity and expression.

In 2016, the Committee on Economic, Social and Cultural Rights stated that any direct or indirect interference in access to sexual and reproductive health services such as criminalization of consensual sexual activity between adults, of transgender identity and expression, and abortion, is a violation of the state’s obligations to non-discrimination and equality under international law.

The Committee on the Rights of the Child has also called upon states to introduce measures to ensure that young people have the opportunity to express their views on and take decisions regarding their sexuality. In their 2016 report, the Special Rapporteur on the right to health urged states to ensure that young people have access to “sexual and reproductive health information, services and goods… as well as modern forms of contraception, including emergency contraception, and safe abortion and post-abortion services.”

The Committee on the Elimination of all Forms of Discrimination Against Women has also called upon states to provide human rights protections to sex workers, without explicitly calling for its decriminalization.  The Special Rapporteur on the right to health has expressly called for the decriminalization of sex work in view of the barriers it creates in accessing health services.

In 2017, 12 UN entities demanded a review and repeal of punitive laws that “criminalize or otherwise prohibit gender expression, same sex conduct, adultery and other sexual behaviours between consenting adults; adult consensual sex work; … sexual and reproductive health care services, including information …” that have an adverse impact on access to health services.

Decriminalization: The way forward?

Criminalization reinforces the power of the state and society in influencing and controlling the decisions and choices of individuals and is frequently used in ways that reinforce social inequiities and patterns of discrimination. Activists across the world are fighting to decriminalize people, behaviors, and identities by highlighting the gaps between laws and norms that criminalize consensual sexual activity and autonomous choices related to gender, sexuality, and reproduction, and legally guaranteed human rights. These struggles for decriminalization demand that laws should recognize the right on one’s own body and personal choice. They are also based on the belief that laws should protect the rights of all people, and must not be based on the morality of a few groups on the issue of sexuality.

It is also important to note the corresponding questioning the over-reliance on criminal laws for addressing and deterring gender-based violence. This shift in legal and policy advocacy acknowledges that even when criminal laws are in line with international law, their implementation occurs in deeply prejudiced justice systems. As a result, well-intentioned criminal laws often fail to realize their objective at best and may even serve to defeat the rights of the very constituencies that they seek to protect. In this context, it is important to explore solutions, based on inclusive consultations, instead of demanding severe punishments in law.