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

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2.4 (De)criminalization of sex outside marriage Sri Lanka, Nepal and Thailand do not criminalise adultery. However, as mentioned later, adultery is a ground for divorce in these countries. 165 The Penal Code of Thailand does not contain a punishment for adultery. Under its Civil and Commercial Code, however, there is an interesting aspect of regulation of sexual activity. Under Thai marriage laws, persons above the age of 17 (or where they are younger with the consent of parents or guardians) may be betrothed. 166 This is done based on the man giving the woman some form of property; however, the betrothal does not create an obligation of marriage and any agreement to pay a penalty in breach of a betrothal agreement is void. 167 The law provides that if there is an “essential event” that happens to the betrothed woman that makes the marriage to her unsuitable, then the betrothal agreement may be renounced and in such cases the man may claim compensation from another man who has sexual intercourse with the woman knowing or who should have known of her betrothal. 168 Thus, the essential event includes sexual intercourse with another man. It may also include rape, as the betrothed man may, without renouncing the agreement claim compensation from a man who had or attempted to have sexual intercourse with the betrothed woman against her will knowing or should have known about the betrothal. 169 Interestingly, where an “essential event” happening to the betrothed man that makes marriage to him unsuitable also allows the betrothed woman to renounce the agreement but the law does not allow her to claim compensation from another woman. Both parties are required to pay compensation to the other person if there is gross misconduct on their part leading to the renouncing of the agreement – this likely includes sexual intercourse with another person. 170 In Indonesia, the Penal Code prescribes a maximum punishment of nine months for married men and women as well as the persons they committed adultery with. However, a prosecution under the law can only be instituted by the “insulted spouse” and the complaint may be withdrawn as long as judicial investigation has not commenced. 171 Several reports on a newly enacted law in the Aceh province of Indonesia also note that the law punishes adultery with stoning. 172 However, a verifiable English translation of this new law was not available for the purposes of this review. In India and Bangladesh, adultery is punishable only when the woman commits it. Both countries have identical provisions in Sections 497 and 498 of the Indian and Bangladeshi Penal Codes. Section 497 provides that, “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.” Thus, a married man who commits adultery 165 Ibid. 166 Section 1435, Civil and Commercial Code, 1925 (Thailand) 167 Section 1438, ibid. 168 Section 1445, ibid. 169 Section 1446, ibid. 170 Section 1444, ibid. 171 Article 284, Penal Code, 1982 (Indonesia). 172 See ‘Aceh Passes Adultery Stoning Law,’ BBC News, 14 September 2009. 54
with an unmarried woman is not punishable under this law. Section 498 further punishes any person who takes or entices away any married woman from her husband or from any person having the care of her on behalf of her husband, “with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman.” In Bangladesh, there have been increasing instances of local committees issuing “fatwas” in cases of adultery which have resulted in the stoning of women accused of adultery. A recent Bangladesh High Court decision has reportedly banned such fatwas declaring as illegal all extra-judicial punishments. 173 However, the official decision in this case was not available for the purposes of this review. 173 Sarkar, Ashutosh, “Fatwa illegal - HC rules against all extra-judicial punishments upon writ petitions,” The Daily Star, 9 July 2010, available at http://www.thedailystar.net/newDesign/news-details.php?nid=146004 55
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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: the conviction of the accused for s
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
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In holding that there was no justif
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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
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The fined amount is to be given to
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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
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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
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Indonesia’s Constitution recognis
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In Thailand too, abortion is illega
Page 139 and 140:
With regard to the first question,
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Further, any pregnant woman may vol
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childbearing age to establish a hea
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Government could not be held liable
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among those in the reproductive age
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Members' right to protect public he
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7. INFORMATION, EDUCATION AND EXPRE
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education as well as non-discrimina
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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
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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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