SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

More documents

Recommendations

Info

of exploitation. 558 The punishment is enhanced where the trafficking or exploitation results in major injury, major “mental disturbance”, contracting a life-threatening contagious disease, pregnancy, damage or loss to her/his reproductive organs, or death or where the victim is a child. 559 Victims who commit crimes under this law under the coercion by an offender are exempt from criminal liability. 560 The law also details procedures for investigation, prosecution and trial of offences including specifying that the testimony of the victim is sufficient for proving the guilt of the offender provided one other evidentiary instrument is provided. 561 It also details measures for the protection of victims and witnesses during trial and prosecution 562 as well as for the restitution, medical and social rehabilitation, return assistance etc. 563 and for emergency assistance where the victim suffers trauma or disease that threatens their life. 564 Again as in the case of the Thai law, the institutional structure for addressing trafficking is dealt with in the law which provides for local and transnational co-operation and assistance. 565 The “elucidation” on the provisions of the law (that accompany all Indonesian laws) specifies that the law “constitutes a manifestation of Indonesia’s commitment to observe the UN protocol of 2000 on the Prevention, Suppress and Punishment of Trafficking in Persons, especially Women and Children (the Palermo Protocol), to which Indonesia is a signatory.” 566 In Nepal, the Human Trafficking and Transportation (Control) Act, 2007 governs issues related to trafficking. 567 Human trafficking is defined as selling or buying a person for any purpose, forcing a person into prostitution, removing organs except as authorized by law and engaging in prostitution. 568 Therefore trafficking is directly equated with prostitution under this law, consequently criminalizing prostitution in all its dimensions. “Human transportation” includes taking a person out of the country for buying or selling the person and inducing or forcing a person out of his or her home or place of residence and keeping that person or handing him or her over to another person for the purposes of prostitution and exploitation. 569 This law gives extensive authority to the police. For instance it empowers a sub-inspector or higher personnel to enter premises, seize any property and gather evidence or arrest a person without warrant on the suspicion that an offence of human trafficking or transportation is 558 Articles 2-6, ibid. Punishments are also prescribed for various activities surrounding trafficking and exploitation including assisting, planning or commission by a group of persons. 559 Articles 7 and 17, ibid. 560 Article 18, ibid. 561 Articles 28 – 42, ibid. 562 Articles 43 – 47, ibid. 563 Articles 48 – 52, ibid. 564 Article 53, ibid. 565 Chapter VI and VII, ibid. 566 Elucidation Of The Law Of The Republic Of Indonesia, Number 21 Year 2007 On The Eradication Of The Criminal Act Of Trafficking In Persons, Supplement To The State Gazette Of The Republic Of Indonesia Number 4720 567 The English version of this statute available to the authors is an unofficial translation obtained from the website of the Kathmandu School of Law: www.ksl.edu.np/cpanel/pics/trafficking_act_2064.pdf 568 Section 4, Human Trafficking & Transportation (Control) Act, 2007 (Nepal) 569 Ibid. “Exploitation” is defined as “an act of keeping human beings as slave and bonded and this word also implies to remove human organ except otherwise determined by existing law.” 124
eing committed. 570 While prosecuting cases under this Act, except in cases where a person is being prosecuted for engaging in prostitution, the court is required to keep the accused in custody during the period of prosecution. 571 The burden of proof to demonstrate innocence is placed on the accused under this statute. 572 Here too, as in legislations related to domestic violence or children’s issues in Nepal, court proceedings are to be conducted in camera. 573 Punishments for forcing a person into prostitution is from 10-15 years imprisonment and a fine up to Nepali rupees 100,000. 574 For human transportation the punishment extends to 20 years in prison and a fine up to Nepali rupees 200,000. 575 Punishment is enhanced by 25 percent for a person convicted of an offence who also holds public office and by 10 per cent for a person who is convicted and also is in a prohibited degree of relationship with the victim as per the chapter on incest in Nepal’s Country Code. 576 A victim of an offence under this law is granted immunity from punishment for causing death of the offender while trying to escape the circumstances. 577 Nepal’s Country Code also has a chapter covering human trafficking. 578 This chapter does not refer to sexual exploitation explicitly. However, it does consider buying or selling of a person as an offence. Yet, this translation does not provide clarity. For instance, clause 2 impliedly permits the enticement or separation of a person below 16 years or a person who is “mentally disturbed” with permission of the legal guardian, which could not have been the purpose of this law. 579 Bangladesh’s Suppression of Immoral Traffic Act, 1933 aims more at the regulation of prostitution than at the prevention of trafficking. These provisions are discussed below. The law is specific to women and girls. Elements of trafficking are covered in the punishment of procurement or bringing a female to any place for prostitution and if the person procuring is male, then punishment can also include whipping. 580 The Act punishes the detention of any female below the age of eighteen in places where prostitution is carried on and that of females over the age of eighteen with the intention that she may have sexual intercourse with a man other than her lawful husband. 581 It also punishes a person (including whipping for a male offender) who has the custody, charge or care of a girl under eighteen who causes, encourage or abets the seduction or prostitution of the girl. The Act also allows police officials above a certain rank to remove minor girls from places where offences under the Act may be taking place; the law then allows courts to place them in custody till they are eighteen or make other arrangements. 582 The court can also direct the parents of a girl who is under custody to contribute for her maintenance and the person in whose custody she is placed has 570 Section 7, ibid. 571 Section 8, ibid. 572 Section 9, ibid. 573 Section 27, ibid. 574 Section 15, ibid. 575 Ibid. 576 Ibid. The authors have been unable to obtain an English translation of the chapter on incest in Nepal’s Country Code. 577 Section 16, ibid. 578 The authors obtained an unofficial translation of this chapter from the Kathmandu School of Law website: http://www.ksl.edu.np/cpanel/pics/6_H_T.pdf. 579 Chapter 11, Nepal Country Code: http://www.ksl.edu.np/cpanel/pics/6_H_T.pdf 580 Sections 9(1) and 10(1), Suppression of Immoral Traffic Act, 1933 (Bangladesh) 581 Section 11, ibid. 582 Sections 13 and 14, ibid. 125
Page 1 and 2:
THE INTERNATIONAL COUNCIL ON HUMAN
Page 3 and 4:
6. ACCESS TO HEALTH SERVICES IN REL
Page 5 and 6:
ABBREVIATIONS AIDS ART ARV CEDAW CE
Page 7 and 8:
in the regional reviews. This is a
Page 9 and 10:
provide for information and distrib
Page 11 and 12:
B. METHODOLOGY In keeping with the
Page 13 and 14:
elevant and key laws and judgments;
Page 15 and 16:
The inability of many sexually stig
Page 17 and 18:
Equality irrespective of a person
Page 19 and 20:
The centrality of women’s rights
Page 21 and 22:
social standing, religious belief,
Page 23 and 24:
according to the physical condition
Page 25 and 26:
Constitutional Court in The Nationa
Page 27 and 28:
protections or statutory law. There
Page 29 and 30:
However it also noted that every Ri
Page 31 and 32:
concerned with declaring that the h
Page 33 and 34:
without guaranteeing the personal p
Page 35 and 36:
to enlarge the meaning and content
Page 37 and 38:
a concept has wider dimensions than
Page 39 and 40:
Such conduct mentioned in clauses (
Page 41 and 42:
embraced the complainant and asked
Page 43 and 44:
does not sever the ties between the
Page 45 and 46:
The potential recognition of same-s
Page 47 and 48:
Similarly, seeking out sex educatio
Page 49 and 50:
condom). Across such laws, the defi
Page 51 and 52:
jurisdictions. Nepal, a country wit
Page 53 and 54:
the conviction of the accused for s
Page 55 and 56:
with an unmarried woman is not puni
Page 57 and 58:
physical characteristics (virginity
Page 59 and 60:
interventions and safeguards such a
Page 61 and 62:
The opinion of the National Commiss
Page 63 and 64:
was married to she would acquire im
Page 65 and 66:
to consider the case of a woman see
Page 67 and 68:
oth parties and deems all marital p
Page 69 and 70:
female who has not attained 12 year
Page 71 and 72:
Article 16 of the Universal Declara
Page 73 and 74: In Bangladesh, polygamy is allowed
Page 75 and 76: immovable property. The above propo
Page 77 and 78: consummation of marriage. The incap
Page 79 and 80: Violence, especially sexual violenc
Page 81 and 82: gender norms which many remand home
Page 83 and 84: female or a female to a male. It in
Page 85 and 86: from other forms of inequality as w
Page 87 and 88: c. Whereas victims of violence in h
Page 89 and 90: courts. 350 According to the Commis
Page 91 and 92: The Act provides for the appointmen
Page 93 and 94: Rani 383 it was held that a shared
Page 95 and 96: The Act specifies imprisonment of 6
Page 97 and 98: property jointly or separately held
Page 99 and 100: upees or the amount of the dowry wh
Page 101 and 102: however, is that, of the 10,000 dea
Page 103 and 104: Addararachchi 439 the court conside
Page 105 and 106: harassment, the Indian Supreme Cour
Page 107 and 108: doer’s sexual desire by using doe
Page 109 and 110: In holding that there was no justif
Page 111 and 112: coerce or induce female inmates to
Page 113 and 114: material or detain any person for t
Page 115 and 116: consensual sexual activity with you
Page 117 and 118: The fined amount is to be given to
Page 119 and 120: the State and its citizens is one o
Page 121 and 122: every person “the right against e
Page 123: The law also includes the right of
Page 127 and 128: Broader provisions related to child
Page 129 and 130: in order to engage the child in suc
Page 131 and 132: her.” 631 A person is deemed to h
Page 133 and 134: that they are denied the fundamenta
Page 135 and 136: Indonesia’s Constitution recognis
Page 137 and 138: In Thailand too, abortion is illega
Page 139 and 140: With regard to the first question,
Page 141 and 142: Further, any pregnant woman may vol
Page 143 and 144: childbearing age to establish a hea
Page 145 and 146: Government could not be held liable
Page 147 and 148: among those in the reproductive age
Page 149 and 150: Members' right to protect public he
Page 151 and 152: 7. INFORMATION, EDUCATION AND EXPRE
Page 153 and 154: education as well as non-discrimina
Page 155 and 156: The exchange of information through
Page 157 and 158: community.” 727 In each case, the
Page 159 and 160: Nepal’s Interim Constitution limi
Page 161 and 162: Sections 292, 292A, 293 and 294 of
Page 163 and 164: “...any interpretation of 'obscen
Page 165 and 166: “1 (a) Condones or extenuates act
Page 167 and 168: In Thailand, places of entertainmen
Page 169 and 170: 8. SEX WORK This section examines h
Page 171 and 172: The use of raids, and exemptions fr
Page 173 and 174: clients or make an offer for a sex/
Page 175 and 176:
and non-rehabilitative juvenile jus
Page 177 and 178:
“In view of the aforesaid proposi
Page 179 and 180:
person who commits the act are of t
Page 181 and 182:
as parent or guardian has given his
Page 183 and 184:
with one) on the charge that it was
Page 185 and 186:
for sex workers while emphasizing t
Page 187 and 188:
19. Azimuddin v State of Uttar Prad
Page 189 and 190:
1. Acid Control Act, 2002 2. Acid-O
Page 191:
13. Intellectual Property Act, 2003
show all

SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Create successful ePaper yourself

Delete template?

Save as template?