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

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information, including information about HIV prevention and safer sex; condoms; and contraceptives (as appropriate). Some prison systems provide for conjugal visits as a way to maintain sexual health and well-being. The criminalization of sexual conduct between a person deemed sufficiently mature and a person deemed 'below the age of consent' is accomplished in many locations through criminal law regarding 'statutory rape', that is, criminalizing sexual conduct with a person below the age at which the younger person is deemed able to give consent. Legal frameworks regarding statutory rape are complex and vary across national contexts regarding the age at which the young person can give consent, to which sexual practices, and with what age difference between the younger and older partners. In addition, these laws often vary greatly in what sexual conduct is prohibited. Statutory rape laws often have a restrictive effect on health and rights. Their existence is used to justify denying young people their rights to health information and services essential to protecting their reproductive and sexual health, as well as their decision-making capacity. Thus, statutory rape laws must balance the objective of protecting younger persons in situations of vulnerability, while not interfering with their ability to access sexual information and engage in sexual behavior appropriate to their ages and evolving capacities. While human rights standards set the age of marriage at 18 for men and women, the age of consent for sex is generally understood in international rights standards to be lower than the age of marriage. 134 To avoid discrimination, statutory rape laws must not impose different standards for boy and girls, or for homosexual or heterosexual activities, for differentlygendered partners, or assume a priori that the 'offender' in the case of two young people close in age is the male. Criminal laws proscribing incest are found in many jurisdictions, but they reflect extremely diverse conceptions of kinship, social appropriateness, and risk. Prohibitions against incest vary greatly regarding the type of kin one must avoid having sexual relations with, reflecting important social principles of proximity and distance rather than degrees of biological relatedness. Indeed, some incest laws prohibit sexual relations between individuals who have no biological relationship whatsoever, although they are legal relatives (like step-parents or in-laws). Some incest laws prohibit sexual contact between adults and young people under the age of consent (in which case the sexual contact could not be seen as consensual), and the law serves as protection against abuse. Other laws more expansively forbid sexual conduct between persons in specified kinship relationships, even if they are all adults and without evidence of abuse. Specific criminalization of HIV transmission (through sexual and other behavior) has recently become a popular state response to HIV, although a rights and health analysis suggests many problems with this approach and that the appropriate application of existing criminal law (on assault, for example) is more suitable and effective. 135 Criminal statutes vary greatly in terms of what is prohibited: intentional sexual conduct (i.e., intending to cause transmission and infection) or sexual behavior that is deemed reckless. To avoid criminal penalty, some laws require the infected person to announce his or her status to the potential partner prior to sexual relations, while others require taking protective steps (using a 134 CRC and international law section 135 Cite? UNAIDS [see Special Rapporteur on the Rights to Health; 2009 Lancet article by Edwin Cameron and Scott Burris, etc ?? 48
condom). Across such laws, the definition of prohibited sexual practices is often vague, violating basic principles of criminal law (that conduct must be described with sufficient clarity to give notice). Other laws explicitly (or de facto) are used to address only specific populations perceived to be particularly prone to ‘risky behavior’ (for example, persons in sex work or men who have sex with men), such that the laws may be discriminatory in substance or application. Efforts to criminalize reckless or intentional transmission of HIV are often undertaken on the grounds of protecting vulnerable women (especially wives) against infection by male partners. Paradoxically, these laws are often turned against women, particularly those exceeding the bounds of conventional womanhood. 136 Although laws criminalizing intentional or careless HIV transmission might serve as strong statements of social disapproval about harmful or reckless sexual behavior, the most significant effect on sexual health is that such laws discourage people from being tested and knowing their HIV status. 137 Weighing the very small number of cases prosecuted under these laws against their impact suggests legislators turn to them as symbolic rather than functional interventions— nonetheless, their negative rights and health consequences, in part through discriminatory policing and associated abuses, are felt by already stigmatized populations. The criminalization of consensual sexual conduct exists in the research countries to varying degrees. 2.1 (De)criminalization of same- sex sexual conduct All the research countries other than Indonesia had at one time or continue to have provisions in their laws that criminalize consensual same-sex sexual activity. While these provisions continue to exist in Bangladesh and Sri Lanka, in Nepal and India they have been struck down by courts of law 138 . This section does not however discuss the situation in Indonesia due to lack of access to verified English translations of Indonesian laws in this regard, although secondary literature appears to suggest that there is a trend of criminalization of same-sex sexual conduct, particularly in certain provinces in Indonesia. 139 The government of Thailand adopted an interesting route for removing the criminal provisions related to same-sex sexual conduct. A review of its Criminal Code in the 1950s, of laws that were not used, identified the provision criminalizing same sex sexual conduct as never having been used in a single prosecution. The Penal Code of 1956 accordingly does not 136 Criminal statutes against intentional or reckless transmission may have perverse effects, when applied to pregnant women in childbirth, who may be viewed as infecting the newborn. 137 CITE: Burris et al and Cameron and Burris above—are there better cites from UNAIDS, Sofia? SUGGEST THE UNAIDS DOCUMENT ON CRIM BE ADDED HERE AS WELL AND SOME OF THE CITES IN THE OSI STUFF.. 138 See Chapter 1 on Discrimination 139 The situation in Indonesia regarding homosexuality is complex. While the main criminal law does not criminalise sodomy and an attempt in 2003 to criminalise sodomy, among other consensual sexual activities failed, regional prostitution laws reportedly criminalise homosexual sex. More importantly, the region of Aceh has recently introduced a law that punishes homosexuality with whipping. See International Gay and Lesbian Human Rights Commission, ‘Human Rights Abuses Against Sexual Minorities in Indonesia: Report to the UN Human Rights Council for the 2007 Universal Periodic Review’, 2007 and Simanjuntak, Hotli, ‘Gays, lesbians face discrimination in sharia Aceh,’ The Jakarta Post, 20 January 2010. 49
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: Similarly, seeking out sex educatio
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 and 124:
The law also includes the right of
Page 125 and 126:
eing committed. 570 While prosecuti
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
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