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

2. PENALIZATION AND / OR REGULATION OF SEXUALITY / SEXUAL
ACTIVITIES
In almost every state, criminal law is used not only to deter and prosecute sexual conduct
understood to be violent or otherwise coercive, but it is also applied to a wide range of
consensual sexual conduct occurring between adults in private. In the second case, criminal
law is used selectively to enforce certain moral, religious or cultural standards, with arbitrary
(i.e., not necessary or justifiable in a democratic society) negative impact on rights 126 and
grave impact on sexual health. Moreover, police practices regarding consensual adult sexual
conduct in private—sometimes under color of criminal law enforcement, but often without
actual juridical basis in the law— has grave effects on health and rights, especially of persons
who are already socially marginalized. The criminalization of consensual sexual conduct
between adults in private constitutes direct state interference with respect to private life; it
also violates the right to equality and non-discrimination. Criminalization of consensual
conduct between adults can proscribe sexual practices ('sodomy', 'unnatural offenses' 127 ),
sexual conduct between same-sex partners, sexual conduct between unmarried partners, and
sexual conduct outside of marital relationships.
In addition to discrimination on the basis of marital status or the partner's sex, regimes of
criminalization often impose penalties on women, though not on men, for the same behavior
(departures from virginity or chastity), thus constituting additional discrimination on the basis
of gender. Criminal statutes prohibiting sexual conduct are often vague and non-specific in
their use of language, often using euphemism instead of clear descriptions of sexual activity,
thus making it difficult to know what exactly is forbidden and violating a basic principle of
criminal law that laws give clear notice of what actions are prohibited. 128
Criminalization of consensual, private sexual behavior among adults has many consequences
for sexual health. Persons whose sexual behavior is deemed a criminal offense strive to hide
their behavior and relationships from agents of the state and others, not availing themselves
of sexual health services on offer. 129 Research has documented that those engaged in sexual
behavior deemed criminal evade or do not take full advantage of HIV and STI services for
prevention and treatment of disease, fearing compromised medical privacy or doubting health
providers' respect for confidentiality. 130 These consequences are often exacerbated by other
characteristics of the person, which render them more vulnerable to abuse by authorities
under the criminal law such as disfavored sex, gender, race, ethnicity or national status. Many
legal systems fail to create remedies that both eliminate immediate barriers (i.e., the stigma
that criminalization causes or exacerbates) and reach the underlying basis for abuse (race,
national status, sex or gender).
126
As numerous international rights cases and authorities have noted, the use of the criminal law to
impose religious or moral beliefs on citizens in regard to sexual conduct is an arbitrary and discriminatory use of
the power of the state which cannot be sustained under rights review. See International human rights §, esp,
discussion of Toonen and the Siracusa Principles at>>