Reimagining young people’s rights in South Asia: Learnings from #FlawsInLaws

ABSTRACT

While the criminal justice system is an essential pillar in ensuring human rights for young people, especially their sexual and reproductive health and rights (SRHR), laws and regulations are often overused or misused regarding rights related to gender and sexuality. Sometimes this is explicit, but other times it works in less overt ways to undermine young people’s rights. Therefore, in 2019, CREA joined with seven partners in South Asia to launch a campaign focusing on the impact of criminalisation of young people’s sexuality - rethink young people’s freedoms, reimagine their rights, and help them to realise their futures. Legal and policy advocacy has often promoted reform in a way that empowers the state to legislate on aspects of sexuality, including sexual identity, conduct, expression and reproduction – sometimes expanding rights protections, but sometimes putting rights at risk. Through the campaign, the partners sought to highlight the disconnected law and policy structures about young people and their sexuality (including criminalisation, lack of comprehensive sexuality education and lacune in SRHR services), envisioning arights-affirming environment for young people and the communities that support them. We contestedthe tendency to advocate for rights’ recognition through distinct, issue-based initiatives rather than a holistic, intersectional approach.

KEYWORDS:

• Criminalisation
• sexuality
• law
• social justice
• rights
• young people

Introduction

In 2019, led by CREA, a feminist international human rights organisation based in the Global South, 8 South Asian organisations came together to develop a campaign to challenge how criminal law, the criminal legal system and criminalisation is used to not just control but quash and criminalise expressions of sexuality and identity. The campaign partners – Aahung (Pakistan), ARROW (Malaysia), Bandhu (Bangladesh), CREA (India), Hidden Pockets Collective (India), Youth Advocacy Network (Sri Lanka), The YP Foundation (India), YUWA (Nepal) – are all organisations working with young people.

It cannot be denied that the criminal legal system is an essential pillar in ensuring human rights for all people, especially young people. However, it is equally important to acknowledge that the system exists within certain socio-cultural and political realities of power, privilege, disadvantage and discrimination. In South Asia, like in other parts of the world, the criminal legal system is deeply flawed – structurally and substantively (eSHE, 2021). Across South Asian countries, systems of oppression, such as those based on caste, gender, (dis)ability and religion, are further perpetuated through criminal legal systems, including the prison systems, that tend to reinforce existing systems of exclusion and discrimination. (Human Rights Commission of Sri Lanka, 2020, p. iii; Human Rights Watch, 2020; Shantha, 2020; USA Department of Justice, 2020).

Drawing a connection between the nature of the criminal law and the criminal legal system, criminalisation is the translation of these politics and expressions of power into implementation (Peršak, 2007, p. 5). Criminalisation reflects and affects identities, sexualities, professions, and people who have been historically and structurally marginalised (Amnesty International, 2018, pp. 52, 54, 62). Criminalisation of sexuality and identity includes criminal laws, state policies and social practices that discriminate against people who transgress societal norms of gender, sexuality, ability, profession, etc., by excluding them from accessing the full extent of their human rights.

The idea of the State ‘protecting’ the rights of those who have been systemically and historically discriminated against through criminalisation of expressions of sexuality and identity, becomes further complicated with young people. On the one hand, there is a recognition of young people being vulnerable to violence and harm. On the other hand, the over-arching preoccupation of not just the State, but also some human rights groups, in controlling expressions of sexuality and identity through restrictive laws and policies as a means of protection leads to further harm and rights’ violations. Through discussions, the partners found a common narrative across the region on how, and under the pretence of protecting young people from violence, criminal laws, policies and practices are introduced which result in more harm being done. These include laws and policies on child marriage and early & forced marriages, abortion, age of sexual consent, age of marriage and self-recognition of transpersons.

This paper focuses on the #FlawsInLaws campaign, its process and the learnings. The campaign aimed at challenging the criminalisation of young people and their sexuality, especially as it is manifested in the logic of protection, with the slogan Your protection doesn’t protect me!

#FlawsInLaws: Challenging criminalisation of young people’s sexuality

The online and offline campaign ‘#FlawsInLaws: Rethink my freedoms; Reimagine my rights; Realize my future’ was created and conducted by CREA with the 7 partners mentioned above in the fall of 2019 to challenge criminalisation of young people’s sexuality in South Asia. While the online campaign ran for a month in November 2019, partners have been continuously engaging with the larger theme and the learnings since.

The #FlawsInLaws campaign set out to challenge protectionist approaches, laws and policies presenting a barrier to young people’s sexual and reproductive rights and their access to information and services. Through multiple media formats and blog pieces, the campaign partners highlighted how young people are often criminalised for their sexuality and sexual behaviour in insidious ways and spotlighted the suppression of discussions about sexuality, sexual health and sexual rights. The campaign also emphasised the importance of making linkages across communities defined by race, ethnicity, caste, language, religion, economic or (im)migrant status, family background, health status, work status, sexuality, gender identity and expression, disability, etc. It acknowledged that all young people may be compromised by the package of laws and policies that present barriers to their bodily autonomy and render them ‘criminal’ or in need of ‘protection’ for expressing their non-heteronormative sexuality, identity or gender. At the same time, the campaign also recognised sexual and gender-diverse young people face greater restrictions on expressing their gender, sexuality and identity than many others. The campaign grappled with ways to understand the value of protection of rights alongside the harm sometimes caused by such protection. In some cases, in what we refer to as ‘feminist faultlines’ we put the microscope on our movements. We aimed at advocating for a reconsideration of whether and how feminists, human rights and other social justice groups and movements use the criminal legal system in our journey to justice.

In sharing stories and strategies, we collectively sought to understand what this kind of criminalisation means to our own organisations’ work and to clarify how criminalisation of young people’s sexuality and identity is connected to increasing carcerality and protectionist imperative across our countries and communities. We explored how, even in our movements, we look to the State to address concerns through the law that would be better addressed through systemic changes and recognition and addressal of the root causes – inequality, poverty, etc. (Chowdhury, 2017; Majumdar, 2020). Our movements often embrace the duality of protection and punishment, despite evidence that not only do punitive laws and policies repeatedly fail to achieve their goals, but they often harm, in the name of deterring rights violations or as a prevention framework.

How did #FlawsInLaws come into being?

In September 2019, CREA and the partners convened together to plan a campaign on challenging laws that criminalised young people’s sexuality in South Asia. Since the campaign was predominantly aimed at being an online campaign, with a small offline component, the optimum and effective use of social media was imperative. After collectively deciding on the messages the partners wanted to focus on throughout the campaign, curating these messages to fit the context and various social media needs were essential. It was collectively decided that while challenging criminalisation of young people’s sexuality and identity would be the umbrella theme, each partner would focus on the elements of the theme that were most relevant in their work and their contexts. For example, Bandhu’s messaging focused on criminalisation of queer identities in Bangladesh, Hidden Pockets Collective’s messaging focused on access to abortion for young people in India and Aahung’s messaging focused on access to sexual and reproductive health services in Pakistan. Along with the messaging, risk assessment was also a large part of the conversation with partners. This became especially imperative because of the political and cultural contexts within which some of the partners were working. Thus, during discussions, the name of the campaign was changed from challenging criminalisation of adolescent sexuality to challenging criminalisation of young people’s sexuality and identity. Given the laws and the political context of the region, some of our partners were not comfortable highlighting their work with adolescents on public channels such as social media – for fear of threats and shutdown from their governments and religious leaders. Since the campaign focused on issues of sexuality and access to SRHR services, using young people as opposed to adolescents both expanded the messaging of the campaign and allowed the partners to create content without restraint, ensuring the security of their organisations and safety from State crackdown. Additionally, two of the partners raised the specific request not to be tagged in content and messages containing the words ‘sexuality’ ‘decriminalisation’, ‘LGBTI’, ‘criminalisation’ or ‘penal code’.

To overcome some of these limitations and security risks, art was used as a prominent tool for messaging throughout the campaign. Partners worked with a diverse group of young people, including young trans persons and young persons with disabilities to depict their interpretation of challenging criminalisation through art and commissioned young artists to illustrate the campaign messages. It was also collectively decided that the hashtags used through the campaign would not use terms such as ‘adolescent’, ‘sexuality’, ‘LGBTI’, etc. as mentioned above. Hence, we came up with #FlawsInLaws as our primary hashtag for the campaign.

Where and how was the campaign conducted?

Three online digital media platforms were used for the campaign – Twitter, Instagram and Facebook. The content included striking graphics, informative captions, videos and engaging exercises, such as polls, Q&As and a tweetathon to offer diverse depictions of the negative impact of punitive laws and policies.

The campaign ran for 4 weeks in November 2019. Each week, content created by two partners was highlighted on CREA’s social media. The partners highlighted their content throughout the 4 weeks on their respective social media platforms. Additionally, the partners also decided to develop an accessible microsite to host all the content created as part of the campaign. This helped in directing the online traffic to one place with all the resources and in engaging with the audience in a more sustained manner.

How did we conduct the campaign?

Each of the partners created a new material and used existing organisational work, which included artwork, factsheets, videos and blogs. While the larger cultural context is similar in South Asia, there is myriad of laws and policies, which intersect uniquely with the socio-political and cultural realities of each country. Within their context, the partners brought out these complexities in challenging criminalisation of young people’s sexuality and identity.

In Nepal, for example, while the laws are less restrictive, marginalised groups, including young people, still face stigma and discrimination. In response, YUWA merged art and activism, showcasing the work of young queer artists expressing their challenges in accessing comprehensive sexuality education and advancing bodily autonomy. They worked with a transcultural artist collective called Kaalo 101 to create the art for the campaign. The Youth Reacts! series of vox pop videos explored young people’s experiences of criminalisation and sexuality and identity.

As mentioned above, since direct concerns about criminalisation could not be voiced in Pakistan and Bangladesh due to the severely restrictive political and social environments, Aahung employed language related to Life Skills Based Education, and bodily autonomy to discuss decriminalisation, while Bandhu’s campaign used the terminology of sexual and gender diversity to focus on the gap between law and implementation, which was mostly due to stigma and discrimination.

Due to existing laws and policies and the interpretation of it in India and Sri Lanka, any reference to the sexuality of young people below the age of 18 is a criminal offence. Thus, most of the content from The YP Foundation (India), Hidden Pockets Collective (India) and Youth Advocacy Network (Sri Lanka) focused on facts and figures, awareness and clarifications of existing laws and policies and experiences and stories of young people accessing services. Additionally, the partners created some videos to highlight concerns around current laws and policies. Hidden Pockets Collective also created a series of four videos highlighting concerns around laws on sexual violence against children in India. YANSL released two videos on the stigma against transgenders and criminalisation of HIV. CREA focused on two videos on young girls’ exploration of their sexuality.

CREA also produced postcards that compiled the content shared during the campaign as a way of sharing about the campaign offline and highlighting the artwork that was created. The 8 partners also came together for a tweetathon titled ‘Does Your Protection Protect Me?’, hosted by CREA, to engage in conversations with activists and organisations outside of the campaign around challenging criminalisation, the impact of criminal laws and policies, methods to address criminalisation as movements and allies, and explore ideas to ensure rights of young people within the current law and policy systems.

It was during the offline component of the campaign when partners had the opportunity to truly dive deep into discussions on young people’s relationships with the law, the impact of criminalisation on their access to sexual and reproductive health services, and expressions of their sexuality and identity. While each partner chose different public events as their offline components, conversations across each offline convening helped in creating a safe space to talk about sexuality, identities, relationship with the laws that criminalise young people and exploring conversations beyond criminalisation of young people’s sexuality to understand how abortion rights, sex workers’ rights, disability rights, etc. are criminalised as a means to control bodily autonomy.

Learnings from the campaign

Using documentation, stories, digital art, case studies and reports in a variety of media, campaign partners demonstrated how criminalisation restricts (rather than enhances) consensual sexual conduct, bodily autonomy and identity through laws, policies and regulations that limit access to health services (like HIV testing and treatment or contraception), age-appropriate information to sexual and reproductive health, medical procedures (like abortion), or sexual conduct (age of consent to sex laws). For instance, while laws to raise the age of consent to marry are often seen as a crucial response to stop early and forced marriages and child marriage, the conflation of the age of consent with the age of marriage is harmful as it criminalises consensual sex outside marriage, assumes all sex within marriage is consensual, and reinforces the centrality of marriage in lives of people within a restrictive hetero-normative framework. This is apart from the fact that data shows that raising the age of consent to marry does not stop early and forced marriages or child marriages (Majumdar, 2020; Pitre & Lingam, 2021, pp. 5–7).

A blog piece by YANSL notes that even when the laws are less restrictive, the underlying legal constraints, stigma in communities and shame in families

come together to create a picture where adolescent sexuality is conveniently ignored. In the event that there is an express manifestation of sexuality by adolescents, it is criminalised not only in the eyes of the law, but in the eyes of the society as well. (YANSL, 2019)

Hidden Pockets Collective explored the impact of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and noted that the Act provides a

painstakingly [long] list of activities that children need to be protected against. Since it employs a protectionist lens, POCSO goes into great detail to enlist the various activities that could be seen as a sexual offence. The list could include various physical activities, such as holding hands, kissing, and fondling as acts that could put people behind the bars. A child could not and should not be forced to experience anything against their wishes.

Indeed, Hidden Pockets Collective notes,

even though it had its intentions from a good space, POCSO does not seem to protect the rights of all children. POCSO has not been able to capture the nuances of evolving child and this is where it requires more understanding around children and adolescents and their needs.

As they further note, ‘the law likes a good victim and it likes a good perpetrator, what it does not understand is categories that blur’ (Hidden Pockets, 2019). In fact, the concerns with POCSO, especially vis-a-vis the impact of criminalisation on young people and the fact that the law introduces a clause on mandatory reporting, have been reiterated by organisations, academics and scholars in India (Pitre & Lingam, 2021, pp. 7–10).

Campaign partners’ feminist work with young people of all genders and sexualities has illustrated how girls, trans and other sexual and gender diverse persons are rarely afforded opportunities to learn about their bodies, sexuality, health and rights, and even in the rare cases where sexual and reproductive health services are available, social stigma often deters them from using it. Another campaign partner, The YP Foundation supported a youth-led audit of health services. The audit, confirming the predominance of a punitive approach in the provision of health services to young people, found:

(I)n 48% instances for example, [the young people] were asked their marital status. Experiences of moral policing of girls for being sexually active and denial of counselling services to unmarried girls was a very common experience. Moreover, only 21% respondents of the study were satisfied with the information they received for questions around irregular menstrual cycle, hormonal and non-hormonal contraception, abortion methods etc. Only 30% reported that they felt respected by the services providers which included majority of men. 38% were satisfied with the privacy and confidentiality in seeking the services. (The YP Foundation, 2019)

Campaign partners challenged the persistent representation of young people as either innocents in need of protection from sexual engagement or exploration of gender diversity or as delinquents in need of ‘fixing’. For example, one of the campaign partners held a session with girls in school in which they were invited to draw images of what they understood by bodily autonomy followed by a discussion with a well-known social media influencer who advocates for women’s rights. Not surprisingly, the images created by the young girls depicted bodily autonomy through the lens of violence rather than consent or pleasure. Through discussions, it came out more strongly the lack of any language on consent for these young girls. In another public event in India, the partner took the opportunity, through a panel discussion, to open discussions with challenges faced by child welfare committees in addressing laws wherein young people’s rights are severely restricted. The committee member spoke about the rise in criminalisation of young people who are in consensual relationships.

Other partners pointed out the contradictions in criminal legal systems that not only penalise non-heteronormative genders and sexuality, but create gaps that result in additional punishment. One blog contribution from Bandhu noted

(O)n one side, though government recognised hijras as hijra gender, it didn’t mention anything about the other minorities of trans population; and on the other side it has criminalised same sex relationship. The situation is quite contradictory and due to this, most of the victims of rights violation do not get proper justice. (Bandhu, 2019)

Throughout the campaign, partners explored the coagulation of laws through which criminalisation of young people’s sexuality and gender is expressed and enforced. For instance, partners in India focused on maternal and child health policies, often constructed in ways that restrict access to sexual and reproductive health information and services for young unmarried girls as if they are unmanageable because they are sexually active (The YP Foundation, 2019). Others looked at how contraception remains a big lacuna in the health information and services that are available to women and girls in many parts of India, noting that it is more often than not men who choose the methods and decide whether to use them at all. As a result, young women and adolescent girls bear children at young ages without their full and informed consent and they often have limited access to abortion services. Moreover, given the legal and social norm limits placed on comprehensive sexuality education in the region, many young people – especially young women and girls – lack knowledge of reproductive health issues. Consequently, they are badly placed to negotiate pregnancy and the post-natal period.

The campaign raised questions and explicitly sought to open cross-movement dialogues, with a focus on women’s rights, human rights, LGBTIQ rights and disability rights activists. In large part, this called on the campaign partners to join in challenging women’s rights, human rights and child rights orthodoxy that adolescents and young people are innocents in need of protection, rather than individuals who need support, progressive opportunities to make decisions about their lives, albeit with advice and safeguarding, where needed. In questioning the logic of ‘protection’, the campaign created space, through blogs, digital art and public events for young people to articulate their own experiences. Since the campaign, the partners have engaged in a deeper learning process, from which they are developing materials to support more integration of work to challenge criminalisation of young people’s sexuality into their organisational activities.

Beyond the campaign

As a result of this campaign and similar efforts, some consensus emerged around the dangers of criminalisation, for instance, calling for an end to laws that punish consenting adults’ non-heteronormative sexuality and gender – such as same-sex sexuality, sex outside of marriage, abortion, or HIV disclosure, exposure and transmission. At the same time, many of those who support these efforts to move away from criminalisation still call for stricter laws and policies (especially in the area of gender-based violence, ‘hate crimes’, or the age of consent) despite evidence of the harm that these laws generate, and their failure to achieve their goals.

The persistent lack of distinction between positive and negative expressions of sexuality, between (and in between) consensual and abusive behaviours, and guilt and secrecy about sexuality, set hard and harsh barriers, that, in turn, hamper young people from making empowered decisions about what to do and not do, and from seeking services, help and protection when needed. In sum, it presents young people’s efforts to understand and make self-arranged sexual choices as deserving of punishment rather than supportive engagement, in the context of their evolving capacities. In addition, as one campaign partner wrote in a blog,

(W)hile there are progressive policies operative within Sri Lanka, the problem lies with stigma that leads to lack of access and legal barriers on top of the social barriers. Most adolescents who find themselves different from the accepted set of norms in the society are reluctant to access the resources due to the above reasons. (YANSL, 2019)

Too often, this blogger observed, ‘topics like ‘sexuality’ are shunned by the general public’ and stigmatised in ways that preclude open conversation.

Conclusion

While the criminal legal system has an important place in sustaining the rule of law, expressing broad disapproval of violent acts, and bringing perpetrators to justice, it is also used as a means of social control and a tool in exercising discriminatory laws and practices. In the guise of protection, criminal laws enforce dominant views of morality, public decency or honour rather than on autonomy and human rights. Thus, the criminal legal system typically stresses the punishment of perpetrators rather than restoring the safety and well-being and centring the needs of survivors.

The criminal legal system is not synonymous with justice. The information highlighted in the campaign illustrated the challenges in young people being able to access basic services and information because of laws criminalising their sexuality. An over-reliance on the criminal legal system by state and non-state actors often fails to recognise or acknowledge the role of structural inequalities and practices that deny legal recognition to some identities and sexualities and are responsible for the violation of sexual and reproductive rights. The criminalisation of young people’s sexuality does more harm than good because it constrains young people’s autonomy and right to decision-making. It is imperative to have a legal system that speaks to young people – one that is inclusive of the voices of young people and has an autonomy-enhancing and enabling approach.

Acknowledgements

The authors profusely thank the editors of this special issue, the anonymous peer reviewers and especially, our campaign partners.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

The author(s) reported there is no funding associated with the work featured in this article.