Vague or Overbroad Criminal Statutes and Police Harassment

• Pages: 126-127

Contenidos

• The Issue.
• Legal and Policy Considerations.
• Practice Example.
• References.

Page 126

The Issue

Vague criminal statutes are often enacted and enforced in some countries to enable discrimination based on sexual orientation. Police may target certain groups of MSM and arrest them to dissuade them from gathering or meeting in certain areas. Their authority to do so is based in part on over-broad laws that significantly challenge due process norms found in constitutional and human rights provisions. Statutes intended to facilitate the suppression of activities of MSM may also be applied to inhibit the work of intervening agents. Efforts aimed at disseminating information on HIV prevention and safer sex may be hampered by the actions of police acting on the implicit power granted by vague laws. Ultimately, the enforcement of these criminal statutes leads to public humiliations and infringements of rights of MSM.

Legal and Policy Considerations

MSM are often targeted for prosecution or harassment through laws that are enacted on the grounds of needing to protect the morality and decency of society. These statutes may take the form of laws against "anti-social behavior," "immoral behavior," "causing a public scandal," or "loitering," among others. Police may use these laws to arrest people known to be or suspected of being MSM. Agents of NGOs that try to help MSM can be targeted through the same statutes or may be charged for abetment of a criminal offense. Laws that prohibit "promotion of homosexuality" have been used to prevent distribution of materials dealing with safer sex and public health issues faced by MSM.

In addition to public harassment, police authorities in certain countries have been known to go beyond disbanding gatherings of MSM to include arrest and abuse. In a 2002 survey conducted in Senegal, thirteen percent of MSM reported being raped by a policeman who used the imprimatur of his authority to coerce victims. A study on rights abuses in Kazakhstan revealed that male and transgender sex workers are regularly raped, beaten, and subject to extortion by the police. In these and other examples, police may use laws that discourage homosexual behavior to justify their discrimination (see the example of Jamaica, below) or other offensive acts.

Numerous international documents seek to protect the rights of MSM against these abuses and allow dissemination of public health and HIV materials aimed at this population...