Criminalization is the social and political process by which society determines which actions or behaviors – and by who – will be punished by the state. At the most basic level, it involves passage and enforcement of criminal laws. While framed as neutral, decisions about what kinds of conduct to punish, how, and how much are very much a choice, guided by existing structures of economic and social inequality based on race, gender, sexuality, disability, and poverty, among others.1
Activists, feminists, donors, and governments have, for years, examined and proposed different approaches to addressing sexual and reproductive rights violations that provide justice to survivors and their communities, but also prevent the recurrence of such violations. Addressing rights violations through the proclamation of a law is one of the more popular approaches adopted by states. After all, by passing a law that criminalizes for example, early and child marriage, female genital mutilation, or intimate partner violence, governments are signaling to society that it refuses these acts; what is known as the normative value of the law. This aims to, in turn, act as a deterrent, an element to prevent individuals from committing the violation lest they are apprehended by law enforcement officials. While this works in theory, in practice it has not proven to be effective enough – and in some cases not effective at all – to prevent and put an end to sexual and reproductive rights violations. 2
As a result, many feminists today find themselves at a crossroads. Champions of the landmark violence against women law in Brazil, which aimed at changing both criminal and civil justice systems’ responses to women’s claims, are now questioning the push for more criminal laws, when practice, implementation, and resource mobilization are the more important catalysts for an effective response to violence. Feminists from other countries and regions are also questioning the need to push for more laws and stricter punishments given that existing laws have fallen short of providing justice. This includes those in India who fought for stricter rape punishments and the anti-dowry movement3. Feminists and activists in Egypt who applauded the bottom-up approach and success of their advocacy to pass a sexual harassment law are now finding that they are troubled by the law’s penalties, and that gender discrimination, norms, and stereotypes remain rampant and affect all other aspects of their lives.
1“The Crisis of Criminalization.” Barnard Center for Research on Women, March 2017.
2 “Preventing and responding to gender-based violence in middle and low income countries”. Sarah Bott, Andrew Morrison, and Mary Ellsberg. World Bank Policy Research Working Paper 3618, June 2005.
3 Partners for Law in Development. “Criminalization and Sexuality”. Critical Reflections. From: Roundtable on Exploring the Continuum between Sexuality and Sexual Violence. April 28, 2015.
A more effective response to these violations lies in adopting a more comprehensive approach, one that does not only rely on the law to remedy and deter future violations. A more comprehensive approach will address the root causes and structural inequalities leading to these violations, thereby addressing inequality, discrimination, gender equality and stereotypes that create a thriving environment for these violations to occur in the first place. At the same time, it is important to find other mechanisms that deliver justice and redress on the survivors’ terms and answer their needs, while ensuring community participation. These mechanisms need to be accessible and available to all without discrimination; resulting in overcoming some of the more problematic aspects of criminal justice systems across the world, which will be detailed further below.
This report presents the findings of the desktop research commissioned by the global south feminist alliance, RESURJ (Realizing Sexual and Reproductive Justice), as part of their thought leadership work on the shortcomings and limitations of penal policies in addressing sexual and reproductive rights violations.
The desktop review identified research, resources, and evidence that explore approaches, responses, mechanisms, and methods that respond to and address sexual and reproductive rights (SRR) violations in an alternative manner. The aim of the review and this analytical report is to strengthen RESURJ’s evidence base on sexual and reproductive justice and to further engage with diverse feminists and groups to reimagine alternatives to criminalized approaches, which put human rights and justice at the center.