Criminalizing Consent?

LONDON – Canada’s Parliament is debating a new anti-prostitution bill. Entitled the “Protection of Communities and Exploited Persons Act,” the proposed legislation would criminalize the purchase of “sexual services.” For those who are uncertain about what might constitute a sexual service, the term is helpfully defined by Canada’s Department of Justice to include lap-dancing, but not stripping or “acts related to the production of pornography.”

Canada is not alone in seeking to criminalize transactional sex between consenting adults. More than 120 countries criminalize some aspect of sex work or solicitation, including 13 that, like the Canadian bill, criminalize the customer, and eight where possession of a condom is deemed to be proof of sex work, and thus punishable.

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While the French Senate recently struck down a similar law, several European countries are pressing ahead. In February, the European Parliament adopted a resolution to outlaw the purchase of sexual services from anyone below the age of 21.

The impact of such laws will be much more significant than many believe. Surveys across 54 countries worldwide have found that up to 14% of men in nationally representative samples – and a global average of 9-10% – report paying for sex in the past year. Similar population-based surveys among women find much smaller proportions selling sex.

Efforts to regulate or ban the sex trade are hardly new. Religious and cultural proscriptions aimed at controlling sexual behavior have been around for millennia. Over time, however, the concept of what, when, where, and with whom sexual activity is permissible has changed – sometimes quite arbitrarily, depending on who is in power.

As a result, laws governing sexual behavior are almost as varied as human sexuality itself. Many countries criminalize extra-marital sex. Moreover, more than 20 countries criminalize premarital sex between consenting adults, though in at least 34 countries, young people cannot marry until they are 20 – and, in one country, men need to be 29. Conversely, in more than 50 countries, a girl under 15 can be married off if her parents consent to it, even if she does not.

The United Nations estimates that more than 14 million girls under the age of 18 – of whom one third are under 15 – get married each year. That is 39,000 girl brides every day. In three countries, a third of all girls are married by their 15th birthday.

Laws governing sex among consenting adults can be similarly harsh. In 78 countries, homosexuality is prohibited, and in seven it is punishable by death. The damage caused by such repressive and restrictive laws is well documented, including, for example, an increased risk of HIV transmission among gay men. Do local cultural and religious values outweigh such concerns?

A universal definition of sexual health and sexual rights is sorely needed. The UN has long attempted to define what constitutes a sexually healthy society. Over the past 40 years, expert committees convened by the World Health Organization have agreed that sexual health includes physical, emotional, mental, and social well-being in relation to sexuality, and is underpinned by respect for human rights and individual autonomy. But WHO has never proposed such a definition to its governing body, the World Health Assembly, presumably because some of its member states would reject the definition and the accompanying obligations to promote it domestically.

Now, however, the world has an opportunity to move from criminalization to consent. With the debate on the post-2015 Sustainable Development Goals starting at last month’s UN General Assembly, an oblique reference to “ensuring access to services” can be fully explored. This would normally include sexual and reproductive health-care services such as family planning and treatment of sexually transmitted infections.

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Access to services, though important, is not synonymous with a view of sexuality founded on human rights and individual autonomy. Indeed, rights are mentioned only in relation to reproduction, and concern only girls and women. However, if consent becomes central to the issue of sexual health, all adults will have the right to make autonomous decisions about their sexuality.

These sexual rights would include the right to choose one’s sexual partners; decide whether, when, and whom to marry; decline sexual advances; and even buy sex from another consenting adult. With rights come the responsibility to protect children who cannot legally consent; to ensure that sexual partners are not coerced; and to promote a safe and satisfying sex life for all. It is these rights and responsibilities that Canada and other countries should be enshrining in their laws. That would be a sexual service that no one should oppose.