New UN report advocates for decriminalizing conduct relating to sex, prostitution, sexual and reproductive health

CORRECTION: An April 16, 2023 version of this article stated that the UN was advocating for sex with minors to be decriminalized. After the 8 March Principles were released, Reuters sought to clarify the issues concering the age of consent and reached out to an ICJ spokesperson who clairified that the section regarding consensual sex for minors was actually intended to be about consensual sex between minors. The Reuters report, released on May 9, 2023, quoted an ICJ spokesperson who stated that the intention of the report was not to suggest that "consensual sex" between an adult and a minor should be decriminalized, but that the "report refers to close-in-age adolescents, not sexual relations between adults and children." The IJC spokesperson said that "The 8 March Principles do not call for the decriminalization of sex with children, nor do they call for the abolition of a domestically prescribed minimum age of consent to sex." The full document has been added, the headline has been adjusted, and additional information has been added.

The 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty, released in March by the the International Committee of Jurists (ICJ) along with UNAIDS and the Office of the High Commissioner for Human Rights (OHCHR), offers a set of "new legal principles" for the purpose of "grappl[ing] with the problem of the harmful human rights impact of criminal laws that proscribe conduct associated with sex, reproduction, HIV, drug use, homelessness and poverty."

It offers "a clear, accessible and workable legal framework—as well as practical legal guidance—on crimina law to conduct associated with sexual and reproductive health and rights, including termination of pregnancy; consensual sexual activities, including in contexts such as sex outside marriage, same-sex sexual relations, adolescent sexual activity and sex work; gender identity and gender expression; HIV non-disclosure, exposure or transmission; drug use and the possession of drugs for personal use; and homelessness and poverty."


The guidelines suggest that in some cases, criminal law may be a violation of human rights, and that one of these areas is as regards consensual sexual activity engaged in by minors. The document states that the guidelines are presented with regard to "Emphasizing that, with respect to the application of criminal law in connection with consent, international human rights law requires paying due regard to:
a) the legal capacity of people with disabilities to consent, including through supported decision-making; b)  adolescents’ evolving capacity to consent in certain contexts, in fact, even if not in law, when they are below the prescribed minimum age of consent in domestic law; and c)  non-discrimination and equality with respect to sex, sexual orientation, gender identity, gender expression, race, disability and other protected fundamental characteristics."

As regards minors, the document states that "Consensual sexual conduct, irrespective of the type of sexual activity, the sex/ gender, sexual orientation, gender identity or gender expression of the people involved or their marital status, may not be criminalized in any circumstances. Consensual same-sex, as well as consensual different-sex sexual relations, or consensual sexual relations with or between trans, non-binary and other gender- diverse people, or outside marriage – whether pre-marital or extramarital – may, therefore, never be criminalized.

"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.

"Moreover, 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. Pursuant to their evolving capacities and progressive autonomy, persons under 18 years of age should participate in decisions affecting them, with due regard to their age, maturity and best interests, and with specific attention to non-discrimination guarantees."

An ICJ spokesperson stated that the intention of the report was not to suggest that "consensual sex" between an adult and a minor should be decriminalized, but that the "report refers to close-in-age adolescents, not sexual relations between adults and children." The IJC spokesperson said instead that "The 8 March Principles do not call for the decriminalization of sex with children, nor do they call for the abolition of a domestically prescribed minimum age of consent to sex."

The principles were the product of a 2018 workshop between the three organizations and developed over the next five years "based on feedback and reviews from a range of experts and stakeholder," according to the UNAIDS website. The principles' goal was to push decriminalization globally for a wide range of actions as regards sex.

Sex work is included among those actions. The report states that "The exchange of sexual services between consenting adults for money, goods or services and communication with another about, advertising an offer for, or sharing premises with another for the purpose of exchanging sexual services between consenting adults for money, goods or services, whether in a public or private place, may not be criminalized, absent coercion, force, abuse of authority or fraud.

"Criminal law may not proscribe the conduct of third parties who, directly or indirectly, for receipt of a financial or material benefit, under fair conditions – without coercion, force, abuse of authority or fraud – facilitate, manage, organize, communicate with another, advertise, provide information about, provide or rent premises for the purpose of the exchange of sexual services between consenting adults for money, goods or services."

As regards gender identity, the report reads that "No one may be held criminally liable for conduct or status based on their gender identity or gender expression. This includes gender identities and forms of gender expression that are perceived not to conform to societal expectations or norms relating to gender roles, the sex assigned to a person at birth or a male-female binary, among others.

"No one may be held criminally liable for consensual practices aiming to assist others with the exploration, free development and/or affirmation of sexual orientation or gender identity, unless there was force, coercion, fraud or medical negligence, or a lack of free and informed decision-making on the part of the person concerned.

"Practices aiming to change or suppress a person’s sexual orientation, gender identity or gender expression carried out without the concerned person’s free and informed consent and decision-making, including through force, coercion or abuse of authority, may be addressed through other provisions in the criminal law."

As concerns abortion, the UN report states "No one may be held criminally liable for their pregnancy loss, including a pregnancy loss resulting from an obstetric emergency, such as a miscarriage or stillbirth, or for attempting or undergoing an abortion or for other decisions they make around their pregnancy or childbirth.

"Criminal law may not proscribe abortion. Abortion must be taken entirely out of the purview of the criminal law, including for having, aiding, assisting with, or providing an abortion, or abortion-related medication or services, or providing evidence- based abortion-related information.
No other criminal offence, such as murder, manslaughter or any other form of unlawful homicide, may proscribe or be applied to having, aiding, assisting with, or providing an abortion, or abortion-related medication or services, or providing evidence-based abortion-related information."

The Law and Policy Director at ICJ, Ian Seiderman, said, "Criminal law is among the harshest of tools at the disposal of the State to exert control over individuals...as such, it ought to be a measure of last resort however, globally, there has been a growing trend towards overcriminalization. We must acknowledge that these laws not only violate human rights, but the fundamental principles of criminal law themselves."

According to the ICJ website, the group is "Composed of 60 eminent judges and lawyers from all regions of the world."  

"The International Commission of Jurists promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems," according to their mission statement.

8 March Principles by Libby Emmons on Scribd


Image: Title: UnitedNations
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