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Downloads/Swp-2009-Raids-And- 61 Z.M BODY POLITICS A PRIMER ON CRIMINALIZATION OF SEXUALITY AND REPRODUCTION AMNESTY INTERNATIONAL BODY POLITICS POL 40/7763/2018 1 Amnesty International is a global movement of more than 7 million people who campaign for a world where human rights are enjoyed by all. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. We are independent of any government, political ideology, economic interest or religion and are funded mainly by our membership and public donations. © Amnesty International 2018 Except where otherwise noted, content in this document is licensed under a Creative Commons (attribution, non-commercial, no derivatives, international 4.0) licence. https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode For more information please visit the permissions page on our website: www.amnesty.org Where material is attributed to a copyright owner other than Amnesty International this material is not subject to the Creative Commons licence. First published in 2018 by Amnesty International Ltd Peter Benenson House 1 Easton Street London WC1X 0DW, UK Cover photo: People take part in a demonstration in support of abortion rights in front off the Polish Pariament, Warsaw, 13 January 2018. © WOJTEK RADWANSKI/AFP/Getty Images Index: POL 40/7763/2018 Original language: English amnesty.org BODY POLITICS A PRIMER ON CRIMINALIZATION OF SEXUALITY AND REPRODUCTION CONTENTS FOREWORD 8 GLOSSARY 10 INTRODUCTION 14 BACKGROUND 26 What do we mean by sexual and reproductive rights? 27 Sexual rights, reproductive rights: what’s the difference? 27 Legitimate and illegitimate use of criminal law 28 Procedural protections 31 Limits on state punishment 32 WHAT IS CRIMINALIZATION OF SEXUALITY AND REPRODUCTION? 38 What about criminalization of sexual violence? 39 What about sexual consent? 40 Why states criminalize 41 Stigmatization, stereotyping and blame 47 Gender-based discrimination and violence 49 Criminalization as experienced by transgender and intersex people 50 How states criminalize 52 Penalization and presumed criminality 54 CRIMINALIZING SEXUALITY AND REPRODUCTION: A HUMAN RIGHTS ISSUE 60 State obligations to respect, protect and fulfil 61 Bodily autonomy 62 Criminalization and human rights violations 63 The rights to freedom of expression, assembly, and thought, conscience and religion 64 The rights to life and to freedom from torture and other ill-treament 64 The right to health 65 Equality and non-discrimination 66 State obligations to combat stereotypes based on sex and gender 67 State obligations to address intersectional discrimination 68 4 ANNEXES 73 ANNEX 1 CRIMINALIZING SAME-SEX SEXUAL ACTIVITY 76 ANNEX 2 CRIMINALIZING SEX OUTSIDE MARRIAGE 92 ANNEX 3 CRIMINALIZING HIV NON-DISCLOSURE, EXPOSURE AND TRANSMISSION 110 ANNEX 4 CRIMINALIZING ADOLESCENT SEXUAL ACTIVITY 134 ANNEX 5 CRIMINALIZING SEX WORK 150 ANNEX 6 CRIMINALIZING ABORTION 178 ANNEX 7 CRIMINALIZING PREGNANCY 204 AMNESTY INTERNATIONAL BODY POLITICS POL 40/7763/2018 5 A survivor of forced marriage stands outside the kitchen at Foceb shelter in central Ouagadougou, Burkina Faso, 5 August 2015. Foceb (Fondation Cardinale Emile Biyenda) provides refuge Ato womansurvivors stands of rape, outside early the and kitchen forced atmarriage Foceb shelterand unwanted in central pregnancy. Ouagadougou, Burkina© Sophie Faso. Garcia/Corbis © Sophie forGarcia/Corbis forAmnesty Amnesty International. International. 6 AMNESTY INTERNATIONAL BODY POLITICS POL 40/7763/2018 7 FOREWORD There is a long history of states criminalizing sexuality and reproductive decisions relating to health. Unfortunately, despite increasing attention paid to the protection of human rights in the last few decades, the criminalization fever shows no signs of cooling. In some areas this trend appears to have gained renewed strength. Throughout much of the Americas, for example, women and health professionals can be punished for seeking, obtaining or providing abortion services. In certain states in Africa, opportunistic politicians have pumped life into antiquated statutes or passed new laws punishing same-sex activity with dire penalties. Notably, this rush to criminalization is not limited to developing or least developed states. The last few years has also seen a rise in women in the USA being jailed for otherwise legal acts conducted during pregnancy, and in many rich and poor states alike, individuals can still be prosecuted for transmission of HIV. Criminalization of sexual and reproductive health-related activity, in particular, stands as a significant impediment to the realization of human rights, particularly the right to health. Although such criminalization is justified by some as a “public health” measure, in most cases it exacerbates the underlying public health concern by driving risk behaviour underground and preventing the provision of effective health services; contributing to preventable illness and death. Criminalization of consensual reproductive and sexual behaviours also violates autonomy, which is the foundation on which an individual’s ability to realise their right to health is built. In addition to implicating human rights adversely, criminalization of sexuality and reproductive decisions engenders stigmatization, discrimination and even violence against people engaged in (or suspected of engaging in) the prohibited behaviour, which can further place the health of vulnerable people at risk. Indeed, the individuals facing punishment tend to be members of poor, marginalized and vulnerable groups, as opposed to wealthy individuals engaging in the same behaviour. Moreover, such criminalization affects not just those against whom the law is directed, but negatively impacts the rights of entire populations by giving states power to interfere with individuals’ private decision-making and forcing people to conform to strict sexual and gender norms. Using the force of state machinery to achieve illegitimate aims relating to the public morality can further lead to an environment generally permissive of arbitrary arrests and detention, harassment, stigmatization, discrimination and violence. Such use of power also weakens respect for the rule of law. 8 Unfortunately, all too often criminalization of sexual and reproductive decisions and behaviours can be a means to gain political support from voters, especially when the targets of such punitive regulation are politically disenfranchised or socially marginalized. It is therefore crucial to highlight the depth and extent of this problem and to empower activists worldwide to challenge laws directly or indirectly criminalizing sexual and reproductive decisions and behaviours. Amnesty International’s Primer and Toolkit - Body Politics: Criminalization of sexuality and reproduction - is a timely, meaningful and welcome contribution that can enable activists to both comprehend and challenge illegitimate criminalization of sexuality and reproductive decisions. It is vital to understand the extent to which criminalization has permeated states today and the damage which is done by such measures masquerading as legitimate public health or public morality initiatives. This Primer details the major areas of concern and the harm which both direct and indirect criminalization inflict on an individual’s human rights and the health of society as a whole. It is not enough, however, to simply understand the problem of criminalization of sexuality and reproductive decisions; steps must also be taken to challenge it. The Toolkit provides concrete campaigning techniques such as mapping stakeholder participation and power, identifying advocacy targets, and building capacity. The Training Manual can be used to build understanding and capacity around these issues for a range of audiences and activists. Considering the wave of criminalization of sexuality and reproductive decisions which appears to be sweeping over states worldwide, it is my hope that Amnesty International’s Criminalization of Sexuality and Reproduction series will help stem the tide by providing advocates and activists with a full understanding of the damage produced by such criminalization and the tools with which to fight it. Anand Grover Former Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health AMNESTY INTERNATIONAL BODY POLITICS POL 40/7763/2018 9 GLOSSARY Age of sexual consent Presumed criminality The age at which a person is deemed The process of assuming a person is a legally capable of consenting to sexual “criminal” and treating them as such because activity. Similarly, it is the minimum age of a they are (or perceived to be) a member of person with whom another is legally permitted a stigmatized group regardless of whether to engage in sexual activity. they have actually engaged in “unlawful” behaviour. This puts people at risk of increased Criminalization of sexuality and reproduction surveillance, discrimination, violence and The process of criminally prohibiting particular extortion by law enforcement officials and the sexual and/or reproductive actions, decisions or public. gender expression for which individuals can be subject to punishments in law. It also refers to Punitive laws and policies the discriminatory use of general criminal law or punitive regulation against people involved in the particular sexual Both criminal and non-criminal laws, policies and/or reproductive conduct, decisions and/or and practices
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