An Overview Of The Human Right To Sexual Autonomy

An Overview of The Human Right To Sexual Autonomy


The way that society views sexuality has drastically changed during the course of the 20th century. Ideals of autonomy and permission gained relevance as we moved away from concepts of decency and bawdiness to assess legitimate sexuality. The law is being tested by this transition as well. Legal control based on morals and ethics is out of date due to the widespread acceptance of different sexual behaviors and sexual orientations. Discussions on sexualities and the law lately have centered on sexual autonomy and its limitations. The legal discussion surrounding sexual assault and the criminal code is a good example of this.  
However, appropriate protection against sexual assault is not the only requirement for the right to sexual autonomy. It is a requirement of sexual autonomy as a human right for States Parties to Human Rights Treaties, such as the ‘’European Convention on Human Rights’’ and the ‘’Convention on the Elimination of Discrimination against Women’’. Along with the assurance of being free from sexual violence, coercion, and prejudice, this also encompasses having control over one's own body and engaging in sexual activity with others. 
Sex education, dependable access to information and medical services, and the maintenance of the various aspects of sexual autonomy are required. This article offers a perspective on the complex aspects of sexual autonomy from the perspective of human rights. 

A. Rethinking Sexuality: Moving From Decency To Autonomy And Consent

Regarding sexuality, there have been significant changes during the past 70 years. Social movements pushed for people's freedom to practice their sexuality without regard to conventional moral principles. The introduction of the contraceptive pill and new reproductive technologies by medical and technology advancements heralds a new era of sexual autonomy. These changes necessitate rethinking sexual rights in terms of sexual consent and autonomy. 

I. Technological, Political, and Social Changes

With the so-called sexual revolution of the 1960s, society's perception of and approach to sexualities was fundamentally altered. Of course, sexual activity has always been governed by societal and legal laws. Rape and other forms of sexualized violence are not novel ways of violating a person's right to sexual autonomy. However, due to prevailing moral theories and taboos, sexualities were hardly ever explored for a very long period. The subject was not discussed in social or legal contexts. 
Because of the sexual revolution, this has changed. The phrase "the personal is political" was used by social movements, particularly in second wave feminism. They criticized the social structures and power dynamics that resulted in the denial of sexuality. Specifically, the student and women's movements adopted the critique on the public/private divide and turned it against patriarchal state structures as well as against bourgeois sexual morality and the idealization of the married, heterosexual nuclear family. This included the separation of the public and private spheres and the description of sexuality as a private matter.
The new movements have an impact on society as a whole. Research in the social sciences demonstrates a paradigmatic shift in how sexualities are evaluated. The traditional notions of decency and bawdiness have gradually given way to new ones. The two new norms that have evolved are autonomy and sexual consent. The new ideal is seen as having sexual encounters that are wanted by at least two of the participants. The advancement of reproductive science and technology, the popularity of oral contraceptives, and the recent appropriation of sexuality as a market for self-optimization are other developments that have an impact on how people think about sexuality.
Not only is the study of sexuality controversial on a social and political level, but sexuality research itself has undergone tremendous transformation. Researchers from the fields of medicine, biology, and psychoanalysis dominated the study of sexualities in the late 19th and early 20th centuries. Midway through the 20th century, sociological sexology adopted a new viewpoint that focused on the social aspect of sexual activity and the social significance of sexuality. The empirical research showed how sexual behavior varies widely across people, challenged the binary distinction between homosexuality and heterosexuality, and highlighted how sexuality is regulated socially and culturally. 
Sexology study conducted in the late 1960s and early 1970s contributed to a growing understanding of how society shapes sexuality. The diverse sexual sciences of today dissociate themselves from naturalism and essentialism. Sexualities are discussed as a social phenomenon. They are interested in interpersonal contact and communication as well as sexuality systems.
Additionally, feminist analyses of gender, sexuality, and power as well as Foucault's discourse analysis have been included into the field of sexuality studies. They have discovered that attempts to define sexualities straddle the line between the creation of hidden knowledge and common knowledge. It is like sexuality "arrives from the stork," as Catharine A. MacKinnon put it. Hidden knowledge is the idea that something is secret and should not be discussed further ("That's none of our business"). 
We all know what is meant, thus additional discussion is unnecessary when it comes to matters of common knowledge. The "mystification that shrouds the subject “occurs in a moral vortex that shapes a linguistic culture inside media, law, and politics with guidelines for when, with whom, and in what context specific issues can be discussed.
Law's taboos influence both legislation and jurisprudence, they are normatively inscribed in rules and judgments. The concurring opinion of United States Supreme Court Justice Potter Stewart in the 1964 case of Jacobellis v. Ohio serves as a stunning illustration of how common and concealed information are constructed in the legal discussion regarding sexualities. The Court addressed the ban on owning and displaying obscene pornography (often known as "obscenity"). 
Stewart used the phrase "I know it when I see it" to define the distinction between acceptable and offensive pornography. His claim exemplifies how difficult it is to understand sexual behavior—in this example, pornographic images—from a legal perspective. The remark also highlights the subjectivity of judicial decision-making, which is important when dealing with morally charged or taboo subjects.
The ideas of sexuality and sexual autonomy have rarely been established in law or jurisprudence up to this point. Some aspects of the law have been impacted by social change. For instance, homosexuality has become legal in many nations, marital rape is now a crime (as of 1997 in Germany), and gender equality is now the law in many contexts. However, in other contexts, there is clearly a tremendous resistance to understanding the conditions and ramifications of the right to sexual autonomy. 
German sexual crime law serves as a recent example. The German Penal Code (StGB), Section 184h (1) No. 1, states that only acts of "some relevance" are covered by the law. What is meant by a sexual act is not defined in great detail. Additionally, the German Penal Code is cited in the Prostitute Protection Act of 2016 as the term is defined there, despite the fact that the phrase is not defined. This is just another way of expressing, "I know it when I see it,". This illustration demonstrates the need to adapt legal doctrines in light of the continuous paradigm shift in order to guarantee sexual autonomy.

II. Gendered Sexualities:

Gender is deeply ingrained in sexualities. Advertising tactics based on the idea that "sex sells" make this very evident. The commodification of sexuality clearly has a gender component. It can be characterized as a "commodity model," in which men and women compete for women's sexuality as a commodity. This theory also explains common gendered attributions, including labelling women who have multiple partners as sluts (shaming). It demonstrates how social norms relating to gender and sexuality can reinforce one another. 
A very particular expectation of sexual activity goes hand in hand with the sexualization of the (female) body. In their Sexual Script Theory, which they utilized to characterize socially and culturally internalized practices in sexual relationships, John H. Gagnon and William Simon showed the patterns of sexual behavior. These performances take place within a complicated system of sexualities' objectification, (self-) marketing, and commercialization. They are ingrained in patriarchal structures and hierarchies, according to feminism. 
In order to address specific hazards to women and girls and to provide sexual rights without discrimination, a notion for maintaining sexual autonomy as a human right must take into account how gender and sexuality interact.

III. A Viewpoint on the Conditions of Autonomy and Consent:

The political and societal discussion of sexuality grew increasingly conscious of the person and their right to self-determination in the 1980s and 1990s. Research on sexuality demonstrates that sexual relationships and their social acceptance are increasingly shaped by autonomy and sexual consent. In addition, the issue at hand is whether and how sexual activity can be consented to. Flexibility results from focusing on the negotiation process rather than the sexual activity itself because it is the communication about it that is assessed. 
However, sexual communication is nuanced, and people's capacity to convey their unwillingness to engage in sexual activity may be hampered depending on the nature of the interpersonal relationship and the social setting. A "notorious gender gap in sexual communication" is another characteristic of sexual bargaining. This focuses on the relationship with continuing discussion rather than the formal phrase of permission. In this way, sexual permission is more complicated than a simple yes or no.
Elisabeth Holzleithner depicts the framework of negotiation as a continuum between two poles, with forced sex at one end and fully informed, passionate agreement at the other. When looking at this continuum of negotiation between the parties, it is possible to ask both what the state can and must do to protect its citizens from sexual assault and to set up the necessary preconditions for self-determined behavior. According to this perspective, a model of consent contains a lot of needs. Five factors influence it: 
In order to obtain consent, actors must meet at eye level, be able to communicate and comprehend one another, negotiate a sexual action agreement while respecting each person's autonomy, act in line with this agreement, and ensure that consent is continuous across time. These issues affect people on a personal, interpersonal, and structural level and call for government intervention on all three. Consent models are criticized for stabilizing heteronormativity and a "gendered giver-receiver grammar" in addition to being too demanding. Feminist academic Catharine A. MacKinnon describes consent models as redefining rape in a significant critique of "the vicissitudes of consent": 
But the concept of consent also holds out great promise. It can be used to refer to a variety of state duties, such as access to healthcare, information and education, and eradicating prejudices. A discussion on sexual autonomy and human rights could result from this in a big way. And in this regard, I do not share the worries raised by MacKinnon because the goal of a communicative model of consent is not to distinguish between behavior that is punishable and that is not, but rather to consider what steps states should take to ensure the fundamental requirements for autonomy and consent.

B. Human Rights Law Regarding Sexual Rights

Only a small number of European and international human rights agreements specifically include sexual rights. The interplay between the protection of sexual health and autonomy is maintained by the anti-discrimination principle. We will go over how each of these elements affects sexual autonomy in the paragraphs that follow. The jurisprudence of the European Court of Human Rights (ECtHR), specific human rights treaties, and soft law instruments must therefore be examined in further detail.

I. Privacy Case Law of the ECtHR

An Overview of The Human Right To Sexual Autonomy
Everyone has the right to respect for their private and family lives, homes, and correspondence, according to Article 8 of the European Convention on Human Rights (ECHR). The convention makes no mention of sexual autonomy. However, the ECtHR claims that because "sexual life is part of private life," the right to privacy protects it. This has been emphasized by the Court in a number of cases since the 1970s, particularly in the context of criminal restrictions against so-called "homosexual conduct" (consensual sexual activity between adults of the same sex, specifically male).Additionally, the Court has ruled time and time again that Article 8 (1) ECHR covers sexual life as well as sexual orientation and gender identity. 
Due to the Court's broad interpretation, it is now understood that respect for private life includes both the right to privacy protection and the right to personal autonomy and growth. More than only a right to respect, Article 8 (1) of the ECHR imposes positive obligations on the State Parties to safeguard private life from intrusions by others and to uphold the fundamental requirements of autonomy. This involves defense against sexual assault and education-based prevention.

I (1). The Right to Personal Autonomy and Respect for Private Life:

According to a feminist viewpoint, the protection of sexual autonomy may contradict with the word "private life," which suggests a certain separation of the public and private realms.
The ECtHR, however, defines the term "private life" generally and does not restrict it to the home and living area. Even in public, privacy is assured. When people act publicly in a way that makes them unable to expect to be protected by the protection of privacy, the breadth of protection may be reduced. To determine the boundaries, the ECtHR employs a "reasonable expectation of privacy" test. 
This test determines whether a relevant component is covered by the Convention if a person has a reasonable expectation of privacy protection in public. The ECtHR employs a balancing viewpoint while administering the examination, concentrating on the social context of human autonomy. This begs the question of how the test's use can take into account non-discrimination against minorities. The Court makes it clear that Article 8 also protects the individual's right to form and maintain relationships with other people in addition to the "'inner circle' in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. 
The right to autonomy under Article 8 has been developed by the ECtHR based on the idea of personal autonomy. According to the Court, "the Court finds that the notion of personal autonomy is a fundamental premise underlying the interpretation of its guarantees, even though no previous decision has established as such any right to self-determination as being enshrined in Article 8 of the Convention." This wide view encompasses more than just privacy protection. In actuality, it signifies that each individual is free to arrange their lives anyway they like, including their sexual lives. 

I (2). Consensual Sexual activities:

The Court found a continuing violation of the applicant's right to respect for his private life in its landmark decision on the criminalization of homosexual acts, Dudgeon v. United Kingdom, noting that "either he respects the law and refrains from engaging even in private with consenting male partners in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution."
High criteria are set by the ECtHR for the basis of criminal prohibitions on consensual gay acts, particularly in private areas. Despite the fact that national authorities have a broad range of legislative goals for criminal laws, even on sexual behaviors, In addition, the moral atmosphere surrounding sexual issues could be seen legitimately supporting the "preservation of morality" described in Article 8 (2). However, the Court acknowledged that society has changed in its acceptance of homosexuality and stated that it is illegal to engage in homosexual behavior since it is an "essentially private manifestation of the human psyche."
This may not be questioned because homosexuality "when it is consenting adults alone who are involved" may shock, offend, or disturb certain people. Taking this argument a step further, the defense of consenting sexual actions between adults, especially those involving more than two people—is more important than safeguarding those who experience harassment from others who do not share their moral values. Thus, the court placed significant emphasis on privacy protection while also emphasizing the individuals' sexual consent.
According to case law, the guarantee of sex is explicitly affected by sexual consent. Additional rulings by the ECtHR narrowed the State Parties' margin of appreciation for limiting adult consent to sexual activity in order to uphold morals. In Laskey and others v. the United Kingdom, the ECtHR determined that in some circumstances, criminal laws that punish consensual sexual conduct in private may be justified in order to safeguard bodily integrity. The three applicants were charged with sexual offences involving beatings, branding, and the inflicting of genital injuries during private sadomasochistic sex parties on both themselves and other willing participants. 
Not every sexual activity that takes place behind closed doors "necessarily falls within the meaning of Article 8," the court declared. It was decided that the government has the right to enact criminal law protections for people's physical integrity. The ECtHR made a distinction between consenting sexual activities and acts of violence that resembled torture in this situation where consent was no longer possible. The judgment addressed the significance of consent in national criminal law, even if it was undoubtedly founded on prejudices about acceptable sexual practices—not include BDSM (Bondage & Discipline, Domination & Submission, Sadism & Masochism), notably not between gay males. 
The Court did, however, offer the State Parties a sizable margin of appreciation, saying that "the Contracting States should enjoy a substantial margin of appreciation to assess all the public-policy choices" because the problem of consent's place in the penal code is so complicated.
The aforementioned rulings unequivocally demonstrate that Article 8 (1) of the ECHR's right to respect for private life protects consenting sexual conduct. Only important reasons can be used to justify interfering with someone's "sexual life." The preservation of physical integrity in the event of violence may be considered a serious factor. 
However, there are strict guidelines for what constitutes acceptable grounds for interfering with adults having nonviolent, consenting sexual relations. The ECtHR's case law narrows the State Parties' substantial scope of appreciation for their decision to restrict Article 8 (1) ECHR to the "protection of morality."

I (3). The responsibility to uphold sexual autonomy under the criminal law:

Positive responsibilities of the State Parties might be deduced from Article 8 in conjunction with Article 3's prohibition of cruel or degrading treatment or punishment in order to ensure respect for private life. The states must refrain from meddling in people's private lives. Additionally, Article 8 mandates obligations to safeguard all people, particularly against violence. 
To ensure sexual autonomy, it can be necessary to take criminal action. In X and Y v. The Netherlands, the ECtHR concluded that Dutch criminal law did not effectively protect mentally challenged people from sexual abuse since they were unable to register the criminal complaint necessary to pursue sexual assaults. This was a violation of Article 8's responsibilities to protect. Sexual offences typically breach fundamental moral principles and the private sphere. Therefore, it is essential to have adequate criminal law measures that effectively prevent crime. In M.C. v. Bulgaria, the ECtHR drew from Articles 3 and 8 positive responsibilities of State Parties to pass criminal rape laws and enforce them by successful prosecution. 
The ECtHR emphasized that numerous Convention States have advanced their national criminal laws against sexual offending. Physical force is no longer required to break through the victim-resistance survivor's in cases of rape. Absence of permission also constitutes the crime of rape. This shift illustrates how society is moving in the direction of gender equality and respect for each person's sexual liberty. Due to the victim-lack survivors of physical resistance in M.C. v. Bulgaria, the Bulgarian prosecuting authorities had trivialized a rape involving a minor as "date rape." The only reason the authorities chose not to pursue criminal charges was this lack of pushback. 
The positive obligations under Articles 3 and 8 were allegedly broken because this prosecution of non-consensual sexual activity was far from effective. In I.G. v. Moldova, the Court vehemently denounced the inadequate protection of sexual autonomy in prosecutions for the rape of a 14-year-old girl in Moldova, supporting this case law. The prosecution team and the national courts didn't properly assess if a lack of consent existed. In D.J. v. Croatia, the Court further ruled that where the police omit to obtain relevant forensic materials and lack to conduct proper interviews with potential witnesses, State Parties violate their affirmative obligation to properly prosecute rape and abuse. 
Even after numerous requests, a forensic test of the skirt worn by the complainant during the reported occurrence was not done in this case. The Court ruled that even a defendant's assertion that the rape victim-survivor was intoxicated or claims about her behavior or personality do not absolve national authorities of their responsibility to conduct a thorough inquiry. A man who covertly recorded his stepdaughter, 14, while she was taking a shower for sex and did not get punishment under Swedish law, according to the ECtHR in Söderman v. Sweden, violated the state's duty to protect. It was not categorized as attempted child pornography because the recordings were not pornographic or as sexual harassment because the filmmaker had no intention of letting the victim or survivor know about the films. 
Additionally, there were no civil law options available to pursue the victim-injury. Survivor’s because the complainant's integrity was not appropriately protected by Swedish law, the state's positive obligations under Article 8 were broken. The ECtHR also ruled that in cases of domestic violence, the State Parties must ensure effective prosecution to protect victim-survivors, particularly from sexual violence, in accordance with Article 3 and the prohibition on discrimination in Article 14. 
In general, case law demonstrates that the State Parties are required to provide adequate protection against sexual offenses. The ECtHR is focusing on the responsibility to protect to a duty to prosecute and punish these violations largely through criminal law when it comes to serious offences like rape, sexual abuse, and domestic violence. Criminal law cannot limit sexual abuse and rape to situations in which the victim-survivor violently retaliates an attack, according to the ECtHR, because it must give adequate protection against non-consensual sexual actions. 
The ECtHR's case law is regarded as "the most effective [instrument] [under international human rights law] in getting justice for rape victims" because of its thorough methodology. The Court must emphasize sexual violence's detrimental effects on an individual's personal autonomy in order to properly conceptualize the human right to sexual autonomy. 

I (4). Sex Education:

The ECtHR reviewed whether national school legislation were in compliance with Article 2 of the First Protocol to the ECHR in a number of instances that dealt with sex education in schools. A right to education is protected by Article 2 (1) of the First Protocol, which is phrased negatively ("No person should be denied the right to education"). In addition, Article 2 (2) makes clear that the state must protect parents' rights to guarantee that their children receive an education and are taught according to their personal religious and philosophical convictions. The First Protocol was construed by the ECtHR in light of Article 8 of the Convention (1). 
In the past, the ECtHR ruled in Kjeldsen, Busk Madsen and Pedersen v. Denmark that the state has a responsibility to impart knowledge or information that is a part of the curriculum in a factual, critical, and pluralistic way. The states have a lot of flexibility in how they create their educational plans. To "pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions" is, however, prohibited. The rights guaranteed by the Convention or the First Protocol to the ECHR were not violated by the sex education curriculum used in Danish elementary schools. The Court held that the underlying legislation was not intended to glorify sexuality, encourage students to adopt early habits that are harmful to their mental stability, physical health, and future, or that many parents would find repugnant.
Additionally, the law had no bearing on parents' natural rights to instruct and counsel their children, to exercise that authority in accordance with their own religious and philosophical convictions, and to raise their children. In Dojan and Others v. Germany, the ECtHR upheld its ruling and emphasized that teaching sex education in schools does not violate any Convention rights if, as in the case at hand, it is restricted to the neutral transfer of knowledge regarding reproduction, contraception, pregnancy, and childbirth and is conducted in accordance with contemporary scientific and pedagogical standards that are in line with the "principles of pluralism and objectivity." 
The state's school regulations encouraged a thorough sex education programme that included the biological, moral, social, and cultural facets of sexuality with the goal of promoting acceptance of all sexual orientations and gender identities as well as the prevention of sexual assault. These objectives, according to the ECtHR, were in line with the Convention. The Convention does not guarantee any right not to be exposed to viewpoints, even though those beliefs may contradict with personal values, the Court added.
In another instance that the ECtHR ruled was inadmissible, the court provided a thorough justification for authorizing sex education in primary schools. The Court acknowledged the significance of the social component for the child's sexual identity development. The ECtHR claims that children are subject to numerous influences and are exposed to a variety of information, particularly via the media. This kind of exposure could bring up important issues that ought to be covered in the classroom. 
The child's welfare, not the parents' moral beliefs, must come first in the respect for parental education rights outlined in Article 5 of the Convention on the Rights of the Child (CRC). The Court's conclusions are supported by a definition of sex education that emphasizes self-empowerment and a foundational understanding of sexuality. 
The ECtHR is emphasizing supporting and fostering children's growth. A requirement for sexually autonomous decision-making and behavior is the provision of education with a diverse curriculum. This holds true for all public educational services, including public advisory centers on pregnancy, contraception, and sexuality. It is not just true for sex education in schools. 

II. Human Rights Treaties with respect to Sexual and Reproductive Health:

Questions of sexual autonomy and those of reproductive and sexual health are intertwined in international and European law. The majority of the pertinent human rights treaties require State Parties to ensure access to basic medical services in the areas of contraception, pregnancy, and sexually transmitted diseases, which guarantees protection of health in this very specific form of sexual and reproductive health. The right to health is a prerequisite for sexual and reproductive health. 
For instance, it is mentioned in Articles 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), 12 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 5, and 25 of the Convention on the Rights of Persons with Disabilities, among others (CRPD). Regarding these Conventions, there are General Comments or Recommendations that aid treaty bodies in interpreting health rights. 
The World Association for Sexual Health, a global organization concerned with sexual health and rights, also includes comprehensive provisions on sexual health in its Declaration of Sexual Rights. The Declaration was updated in 2014 after being first announced during the 13th World Congress of Sexology in 1997. The Declaration of Human Rights demonstrates how sexual rights can be carefully planned out around sexual health, despite simply being a non-binding declaration.

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