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

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Indeed, laws criminalizing intentional transmission of any life-threatening disease are required in order to deter persons from dangerous conduct. With the exception of Nepal it is interesting to note that the other research countries with such laws have provisions which predate HIV. Yet, they cast culpability in imprecise, broad terms – “unlawfully”, “negligently” – thereby failing to envisage situations which blur behavior deemed to be responsible or not (the use of a condom or the obtaining of consent in cases of sexual conduct). The fact that there is virtually no judicial decision applying such laws to sexual conduct then begs the question whether such laws are of any value in relation to such conduct. Additionally, it is worth enquiring whether such laws as they relate to HIV (e.g. the Nepal law) are applicable in a context where anti-retroviral treatment has transformed HIV from a life-threatening condition to a chronic illness. Moreover, in the case of Nepal it is unclear why such criminality has only been provided in cases of rape – does this imply that sexual conduct which is consensual assumes that persons involved are well aware that a consequence of such conduct could be HIV infection? Or that information of a partner’s HIV status is not a material fact that impacts free and informed consent? If so, does the law adequately recognize the ability (or lack thereof) of a partner, particularly a woman, to give informed consent to sexual conduct? 2.3 Age of consent/statutory rape The age of consent for sex differs in the research countries. In Bangladesh, for an unmarried girl it is 16, whereas if she is married the age of consent for sex is 15. 151 In Sri Lanka the age of sexual consent is 16 years of age for males and females, although for married females it is 12. 152 In Nepal the marriageable age for both males and females is 20 years of age. The age of consent for sex is 16 years. 153 In India, the age of consent for sex for unmarried girls is 16 and for married girls 15. 154 The age of consent for boys for same-sex sexual activity is 18 as a result of the Delhi High Court judgment de-criminalising same-sex sexual conduct, where the court ruled, “We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution…By 'adult' we mean everyone who is 18 years of age and above.” 155 In a few cases before the Indian courts, the matter of consensual sex involving a minor has arisen. In the case of Ramvir v. State 156 the Delhi High Court determined that the girl in question was approximately 15 years old when the incident took place and that the facts and circumstances indicated that she had consented to the sexual intercourse. The court upheld 151 See the Suppression of Violence Against Women and Children Act, 2000. The age of consent for sex for boys is unclear. 152 Sections 363 and 365B, Penal Code, 1883 (Sri Lanka). Notably, clause 3.11 of Sri Lanka’s National HIV/AIDS Policy states that, “… steps shall be taken to prevent persons from willfully and knowingly infecting HIV to other persons.” 153 It should be noted that the authors did not have access to these provisions. This information is based on an unpublished study and analysis on sexuality and rights undertaken by the Forum for Women, Law & Development, which was made available to the authors. 154 Section 275, Indian Penal Code, 1860 155 Naz Foundation (India) Trust v. Government of Delhi and another WP(C) No.7455/2001 [Delhi High Court], Date of Decision: 2nd July, 2009 156 MANU/DE/2795/2009 52
the conviction of the accused for statutory rape but did not sentence him to the minimum mandatory 7 years imprisonment but to 5 years. The court held, “the evidence that has come on record clearly shows that the prosecutrix had willingly accompanied the appellant to the places visited by them and spent more than six months in his Company. The prosecutrix was more than fifteen and a half years old when she eloped with the appellant. The appellant was a young man of about 23 years when this incident took place. The main circumstance which persuades me to take a lenient view in the matter of sentence and awarding less than the minimum prescribed sentence of seven years is the consent on the part of the prosecutrix, which is more than evident from the facts of the case.” [emphasis added] However it is difficult to quote this case as progressive case law as the basis on which the judge found that the girl had consented was her not raising an alarm on multiple occasions when she was in a public place, discrepancies in her statements and the fact that the accused took her to his home in front of his relatives. The case is being discussed to indicate that judges struggle in cases where they believe (rightly or wrongly) that the girl has consented to sex but is below the statutory age limit. In Thailand 157 the age of consent for sex is 15 for all genders. The law recognizes that young persons may have consensual sex below the age of consent and provides that in situations where the offender is under 18 years of age and the child is between the ages of 13 and 15 and the sex was consensual there will be no offence of statutory rape, if the court grants permission for their marriage. The Indonesian law related to the age of consent and statutory rape makes for an interesting study. Under its Penal Code, a person who has “carnal knowledge” of a woman below the age of 12 shall be punished with maximum imprisonment of nine years. 158 The same punishment is applicable where the woman is below the age of 15 years but prosecution in such cases can only be instituted on a complaint 159 or where the act results in serious physical injury or death 160 or the perpetrator is of the same sex 161 or the act is committed by giving gifts or promises of money or goods or abuse of dominance or deceit 162 or where the woman is the child, step-child or foster-child of the perpetrator. 163 The laws of the research countries, apart from the wide variations in the age of consent for sex, are of particular concern in their approach to married girls. As noted elsewhere, several of these countries have child marriage restraint laws; the provisions of their criminal legislations however undermine these laws as in the case of India where the age of consent for sex is lowered to 15 for married women, marital rape is recognised only where the girl is under the age of 12 and only a two year punishment is prescribed where the married girl is between the ages of 12 and 15. Of course even in the case of marriage laws there is significant discrepancy in the age of marriage. 164 157 See Section 277, Penal Code, 1956 (Thailand) 158 Article 287(2), Penal Code, 1982 (Indonesia) 159 Article 287, ibid. 160 Article 291, ibid. 161 Article 292, ibid. 162 Article 293, ibid. 163 Article 294, ibid. 164 See Chapter 3 on State Regulation of Marriage and Family 53
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: jurisdictions. Nepal, a country wit
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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