Criminal law and the risk of harm: a commentary on the impact of criminal laws on sexual and reproductive health, sexual conduct and key populations

Abstract

Criminal law is one of the most powerful tools that a State can use to exert control over individuals. It provides a means by which the State may legitimately restrict individual conduct, so as to prevent harm or address harms that have already occurred. In some areas, however, the criminal law itself can be harmful and, for this reason, must be carefully regarded to ensure that it is not employed in ways which are unjust or undermining of human rights, including the right to the highest attainable standard of health and sexual and reproductive health and rights (SRHR). In the areas of consensual sexual conduct, including adultery, sex work and samesex relations; drug use; HIV exposure and transmission; abortion and other sexual and reproductive health and rights, human rights bodies as well as international, regional and national courts have expressed concerns about the impact of criminal law on the enjoyment of human rights, including on gender equality and the right to health.