“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.
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.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.”
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.
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.