Using drugs or alcohol while pregnant is not a crime, and neither is sex with a minor or defecating on a public sidewalk, according to a recent United Nations report that seeks to globally decriminalize a host of behaviors related to sex, HIV, gender expression, drug possession and use, homelessness, and poverty.
The report, written by the International Commission of Jurists (ICJ), says these and other behaviors are a matter of human rights, and criminalizing them is harmful to those who engage in such activities, by placing a social stigma on them.
“From long years in the law, and as a proudly gay man, I know profoundly how criminal law signals which groups are deemed worthy of protection—and which of condemnation and ostracism,” Edwin Cameron, retired justice for the Constitutional Court of South Africa wrote in the report’s forward.
“In recent years, in some quarters, there has been a backlash against human rights, especially against sexual and reproductive health and rights, and the human rights of women, lesbian, gay, bisexual, transgender, non-binary, gender diverse, and intersex persons, as well as against sex workers, people who use drugs, and people experiencing homelessness and/or living in poverty,” said the report, which alludes to victims as “third parties” among law enforcement and people freely living their human rights.
Criminalization does not protect third parties physically, psychologically, or financially from direct harm, the report said. Instead, it typically seeks to clamp down on consensual conduct, stigmatized identities, and personal status.
Criminalization is “the legacy of colonial, xenophobic, racist, sexist, classist, ableist, cultural, religious, social, political, economic, and other power dynamics,” the report said.
Decriminalizing Sex With Minors
In the United States, the age at which an individual can legally consent to sex varies by state. Most states (34) consider it to be age 16. The rest say consent is either 17 or 18 years. Some other rules apply, relating to age difference between the parties, when determining if law enforcement will charge the older person with criminal rape.
But the report says such charges could be stigmatizing, and it calls for the decriminalization of sex between adults and minors.
“With respect to the enforcement of criminal law, any prescribed minimum age of consent to sex must be applied in a non-discriminatory manner. Enforcement may not be linked to the sex/gender of participants or age of consent to marriage,” the report said. “Sexual conduct involving persons below the domestically prescribed minimum age of consent to sex may be consensual in fact, if not in law. In this context, the enforcement of criminal law should reflect the rights and capacity of persons under 18 years of age to make decisions about engaging in consensual sexual conduct and their right to be heard in matters concerning them.”
Prostitution and pimping should not be considered criminal either, the report indicates.
Criminal law may not forbid third parties who facilitate, manage, organize, advertise, or rent a hotel room for sex in exchange for money, between consenting adults, the report said.
The key in all examples, is consent without coercion, force, or abuse.
“Consensual sexual conduct may never be criminalized,” the report said, no matter the “type of sexual activity, sexual orientation, gender identity or gender expression of the people involved, or their marital status.”
And non-disclosure of HIV status, exposure to HIV, or HIV transmission should only be considered criminal in cases of intentional transmission of HIV: that is, where a person knows their HIV-positive status, acts with the intent to transmit HIV, and does in fact transmit it, the report said.
Abortion Without Restriction
The report provides no protection for the unborn and is decidedly pro-abortion.
“No one may be held criminally liable on the basis that their conduct is alleged to be harmful to their own pregnancy, such as alcohol or drug consumption or contracting HIV or transmitting it to the [fetus] while pregnant, or for their own pregnancy loss,” the report said.
“Criminal law may not [forbid] abortion,” the report said. “Health providers may not be held criminally liable for conduct, such as providing contraception, abortion services or accurate, evidence-based, non-biased information, that enables others to freely exercise their rights to sexual and reproductive health, unless they engage in coercion, force, fraud, medical negligence or otherwise violate the right to free and informed decision-making.”
And parents, guardians, and others who help children get birth control or abortions may not be held criminally liable, unless they have engaged in “coercion, force, fraud, or there was a lack of free and informed decision-making for the child.”
“Abortion must be taken entirely out of the purview of the criminal law,” the report says.
Drugs and Poverty
The report calls for the decriminalizing of drugs, including possessing, growing, buying, and using drugs.
And it addresses poverty, saying no one may be held criminally liable for engaging in life-sustaining economic activities in public places, such as begging, panhandling, trading, touting, vending, hawking, or other informal commercial activities.
Also noncriminal, the report said, are public sleeping, eating, preparing food, washing clothes, sitting or performing hygiene-related activities, including washing, urinating, and defecating, for those who are unemployed or homeless.
Support
The report was signed by 31 supporters from around the world, and seven organizations. Some individual supporters from the United States include Fanny Gómez-Lugo, adjunct professor of law at Georgetown University Law; and Alice M. Miller, co-director, Global Health Justice Partnership of the Yale Law and Public Health Schools at Yale University.
These organizations are mentioned as the first to support the principles in the report: Amnesty International, Global Health Justice; Partnership of the Yale Law and Public Health Schools; Global Network of Sex Work Projects; HIV Justice Network; International Network of People who Use Drugs; Sexual and Reproductive Health Matters; and CREA, an India-based feminist international human rights organization.