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

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.
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