Criminalization and Human Rights: the Use of Criminal Law to Regulate Gender, Sexuality and Reproduction

With support from an anonymous donor, the Human Rights Program is conducting a multi-year research and writing project on the use of the criminal law to regulate gender, sexuality and reproduction. The aim is to provide legal and scholarly reference material and analysis to inform actions related to criminal law reform. Such reference material will allow advocates to more constructively intervene in current public debates at all levels over the criminal regulation of gender, sexuality and reproduction and their effects on rights, equality, dignity and freedom. It is hoped that rooting the examination of the criminal law in human rights principles will promote innovative strategies among differently situated advocates.

The concrete output of the Project will be an edited scholarly publication (electronic and print) of essays and case studies tailored to support advocates, policy makers and legislators in their efforts to promote and protect sexual and reproductive rights. Content spans regions, embrace a diversity of analytic and descriptive frames (i.e, historical and contemporary; single issue and inter-sectional issues) and include scholars from different legal and cultural traditions.

Some of the issues addressed include: the troubling scope of the international human rights’ legal regimes’ permission to states to limit expression on grounds of morality; relations between the claimed intent of the punitive regime and collateral harms, especially in health, of a given criminal law; the gaps between rights-oriented theories of criminal law and the tenor of public debate, especially in legislatures; the limits of current theories of consent and the conditions of valid consent to encompass decision making and action across sexuality, reproduction and gender; and the different rationales and distinct problems arising in countries of avowed secular governments versus those in which religion and the state are explicitly or implicitly accepted as linked. Questions of the variable role of non-discrimination and equality claims across gendered issues will also be addressed: For example, how is it that abortion is not addressed as a gender equality claim?

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