* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
Governments have the power to control the behaviour of individuals through the use of the criminal law. It is not a power to be taken lightly. For those who end up within the criminal justice system and found guilty, they are typically locked up. The immediate and long term consequences are severe. Loss of liberty is loss of control over one’s life. And even after being released, most people who have been imprisoned are treated as suspect for the rest of their lives.
Amnesty International began as an organization that fought to end the imprisonment of people solely for the exercise of their freedom of expression. But the more we worked on these cases of “prisoners of conscience” the more we became aware of the serious risk of abuse of those caught up in the criminal justice system. Again, the decision to use the criminal law as a means of controlling behaviours should never be taken lightly.
The UN Expert on the Right to Health’s new report analyzes the crucial link between criminalization of sexuality and reproductive activities and violence and discrimination against women. Sexual rights and reproductive rights -- though patently obvious as necessary for anyone to enjoy the right to the highest attainable standard of health and to freedom from interference in the family – are constantly attacked as illegitimate. Opponents of sexual rights and reproductive rights co-opt a woman’s right to make decisions regarding her sexuality and whether or not to have children as their right to control or police women’s sexuality.
Given the patronizing belief that women’s sexuality – and therefore reproductive decisions – are legitimately controlled by their families, communities, religious organizations, employers and the state – it is not surprising that the criminal law has been brought into play. But to use the draconian power of the criminal justice system to police women’s sexuality flies in the face of a woman’s right to chose freely and responsibility if and when to have children. The state must create a space for women to make personal decisions regarding sexuality and reproduction free from violence, discrimination and coercion. A state that uses the criminal law to control women’s sexuality is both discriminating against women and subjecting women to the coercive power of the state.
Some states deny women access to contraceptives services but then punish women when they have unwanted/unplanned pregnancies – particularly when those pregnancies occur outside marriage. Some states have laws that so restrict abortion services that medical service providers refuse to treat women for non-pregnancy related medical conditions, out of fear of being prosecuted. Amnesty International has documented cases where such decisions cost the women their lives. In the case of sexual violence, the situation is also stark.
How ironic that when women are victims of sexual violence, states routinely fail to investigate the crime and bring the perpetrators to justice. Yet these same states rush to enforce criminal laws that penalize women seeking to control their own sexual and reproductive lives.
In Nicaragua, Amnesty International has documented the abject failure of the state to address high rates of incest – a crime that often results in pregnancies for its young victims because of repeated rapes of girls by men. But Nicaragua uses its criminal law to penalize abortion in all cases, even when the pregnancy is a result of incest. Girls suffer from the incest, the failure to bring the perpetrators of their rape to justice and then – to add insult to injury -- are deemed criminal if they seek an abortion. Nicaragua is not alone in criminalizing abortion without exception.
Forcing a victim of sexual violence to carry a pregnancy to term undermines both her physical and mental health. States that criminalize a victim’s pursuit of abortion services while failing to address the crime that resulted in the unwanted pregnancy makes a mockery of the principle of equal protection of the law.
To be sure, the goal is to eliminate unwanted pregnancies so that abortions are rare. But states cannot deny girls and women access to sexuality education and contraceptive services; undermine the principle of physical and sexual autonomy; and, at the same time condone sexual violence and then punish women who seek abortion services.
The report is a call for states to get their priorities sorted out and use their resources to empower women while protecting the space for them to live their lives fully and productively. States should heed this call and review how their laws and policing practices may impinge on women’s rights.