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

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, where other less restrictive means of achieving legitimate interests are insufficient. However, globally, States have exhibited a growing trend towards overcriminalization. While retribution, deterrence, incapacitation and rehabilitation are generally considered to be its main purposes, criminal law may also perform an expressive function, through public condemnation of certain conduct seen as deserving reprobation and punishment. The desire to harness this expressive function is a critical factor contributing to the proliferation of criminal law. The unjustified criminalization of individuals and sometimes entire communities is increasingly impeding progress in advancing human rights in many areas, including: racial and gender equality; reproductive autonomy; disability; economic justice; civil liberties; sexual orientation; gender identity; education; youth development; and public health. Moreover, 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. In particular, there has been continued use and, in some cases, a new proliferation of arbitrary criminal laws proscribing conduct associated with sex, reproduction, drug use and the possession of drugs for personal use, HIV, homelessness and poverty. These laws have led to egregious human rights violations, including by engendering and perpetuating stigma, harmful gender stereotypes and discrimination based on grounds such as sex, sexual orientation, gender identity, gender expression and other protected fundamental characteristics.