The ICJ has opened a call for written submissions on the misuse of criminal law in the areas of sexuality, reproduction, drug use and HIV.
In 2016 the UN Secretary General called for the removal of punitive laws, policies and practices that violate human rights, stating that the misuse of criminal law often negatively impacts on health and human rights, particularly in areas of sexuality, reproduction, sex work, drug use and HIV.
Recognizing a need for greater guidance to achieve such law reform, ICJ is seeking inputs for the development of principles to address the detrimental impact on health, equality and human rights of criminalization with a focus on sexuality, reproduction, drug use and HIV.
This is an important opportunity for civil society, academics, law makers, human rights experts, community groups and persons affected by the relevant criminal laws, to provide input, including on the effect of such criminal laws, when and how criminal law should be used, what reforms are needed and what role criminal law should play in the relevant areas.
A background paper providing further information is annexed to the call for written submissions.
The deadline for submissions is the 16th of February 2019.
These submissions will feed into the development of a set of principles to address the detrimental impact on health, equality and human rights of criminalization with a focus on select conduct in the areas of sexuality, reproduction, drug use and HIV.
Please send your submissions, as well as any questions or clarifications, to decrimconsultation@icj.org
CallforSubmission-DecriminalizationProject-ICJ-2019-eng (download the call in English)
CallforSubmission-DecriminalizationProject-ICJ-2019-fra (download the call in French)
CallforSubmission-DecriminalizationProject-ICJ-2019-esp (download the call in Spanish)
CallforSubmission-DecriminalizationProject-ICJ-2019-rus (download the call in Russian)
“Developing principles to address the detrimental impact on health, equality and human rights of criminalization with a focus on select conduct in the areas of sexuality, reproduction, drug use and HIV”
Background There are well-documented patterns of human rights violations and negative human rights outcomes resulting from the existence – let alone actual enforcement – of certain criminal laws. In particular, there is substantial evidence of harmful effects to health, equality and human rights arising from the criminalization of sexual and reproductive healthcare services, including abortion; the criminalization of consensual sexual conduct, including consensual sex work, consensual sex outside marriage (e.g. adultery), consensual same-sex relations, and consensual adolescent sexual activity; the criminalization of drug use, or possession of drugs for personal use; and the criminalization of HIV non-disclosure, exposure and transmission (hereinafter “the select areas”).
In recent years, national courts, international human rights mechanisms and other independent expert bodies, such as the Global Commission on HIV and the Law, civil society organizations and UN entities have been considering how to address the challenges posed by the misuse of criminal laws in the context of the select areas. Increasingly, they have found criminal law provisions and their enforcement in the context of the select areas to be contrary to human rights law and standards. They have found that, in the context of the select areas, criminal laws actually cause harm, particularly to already marginalized groups, and contravene a number of human rights, including non-discrimination principle; the right to equality before the law and equal protection of the law without discrimination; the right to be free from cruel, inhuman or degrading treatment or punishment; the rights to privacy and to health, to name but a few.
The UN Secretary General, in his report to the 2016 High-Level Meeting on HIV and AIDS, recognized the negative health and human rights impact of criminal law in the following terms:
Misuse of criminal law often negatively impacts health and violates human rights. Overly broad criminalization of HIV exposure, non-disclosure and transmission is contrary to internationally accepted public health recommendations and human rights principles. Criminalization of adult consensual sexual relations is a human rights violation, and legalization can reduce vulnerability to HIV infection and improve treatment access. Decriminalizing possession and use of injecting drugs and developing laws and policies that allow comprehensive harm reduction services have been shown to reduce HIV transmission. Similarly, decriminalization of sex work can reduce violence, harassment and HIV risk. Sex workers should enjoy human rights protections guaranteed to all individuals, including the rights to non-discrimination, health, security and safety.
In light of this recognition, the Secretary General called on States to:
Leave no one behind and ensure access to services by removing punitive laws, policies and practices that violate human rights, including the criminalization of same-sex sexual relations, gender and sexual orientation diversity, drug use and sex work, the broad criminalization of HIV non-disclosure, exposure and transmission, HIV-related travel restrictions and mandatory testing, age of consent laws that restrict adolescents’ right to health care and all forms violence against key populations.
Last year, in a joint statement on non-discrimination in health care, 12 UN entities recommended that States put in place guarantees against discrimination in laws, policies, and regulations. In particular, one of the key recommendations addressed to States in that statement calls for:
Reviewing and repealing punitive laws that have been proven to have negative health outcomes and that counter established public health evidence. These include laws that criminalize or otherwise prohibit gender expression, same sex conduct, adultery and other sexual behaviours between consenting adults; adult consensual sex work; drug use or possession of drugs for personal use; sexual and reproductive health care services, including information; and overly broad criminalization of HIV non-disclosure, exposure or transmission.
While some progress has been made in this context,6 there is a long way to go. Most countries still criminalize and punish conduct in the context of the select areas to the detriment of the well-being and dignity of the individual and society, particularly in respect to health, equality, and human rights. There is a need for further strategies and renewed mobilization to address the unjust application and detrimental effects of criminal law, particularly in respect of the above-mentioned areas. This has prompted the Joint United Nations Programme on HIV/AIDS (UNAIDS), the Office of the UN High Commissioner for Human Rights (OHCHR), the United Nations Development Programme (UNDP), the World Health Organization (WHO), the International Commission of Jurists (ICJ) and others to examine more closely the conditions and the permissible grounds, under applicable international human rights law and standards, for the use of criminal law in the select areas in the first place.
Such efforts are particularly important in the current global context of increased challenges to the international human rights framework and to its application to specific at-risk populations. Civil society organizations, affected communities and other stakeholders have called, in particular, for additional guidance at the international level on the legitimate and illegitimate application of criminal law.