Re-thinking criminalization: what are better ways to protect the rights of young people?

30 October, 2023


At home, in school, and in public spaces, young people are always told that they have limited freedoms and rights for their own protection. This can include restrictions on mobility outside the house and without a guardian, on using the internet, on seeking information, on interacting with people of another gender, on dressing the way they want and on expressing themselves in public. More often than not, laws and practices protect social morality, not young people’s rights. Young people and their advocates are increasingly questioning this.

Across South Asia, there are conservative cultural and social taboos around gender and sexuality. Those who choose to express their sexuality and gender identity and expression in a way that goes against social norms can face silencing, shaming, discrimination, isolation and even violence. This violence is often inflicted by families and communities themselves. For people and groups that face structural and social exclusion, the consequences for defying social norms are even graver. For instance, a young Dalit person not following rigid gender norms will face intersectional violence- on account of their oppressed caste and also because of homophobia and transphobia.

As many feminists, sexual and reproductive health and rights (SRHR) advocates and young people’s rights activists have pointed out, the moral panic around young people engaging in sexual activity outside of marriage is linked to patriarchal stereotypes around loose reputation and promiscuous character. The fear may be rooted at multiple levels: the need to protect young people from violence; to prevent pregnancies, STIs and STDs; to safeguard the young person’s (usually the girl’s) chastity and to maintain the honour of the family in front of society, among others. Exploring one’s gender identity elicits similar moral panic and punishment from families, communities and the state.

Restricting rights in the name of protection

In 2021, CREA organized a campaign with the slogan ‘Your protection doesn’t protect me!’, following a multi-country campaign ‘Flaws in Laws’. Both campaigns highlighted how ‘protection’ is often conducted in a way the circumscribes and limits but doesn’t really protect. The Flaws in Laws partners call this ‘protectionism’.

Protectionist strategies are based on paternalistic and patriarchal assumptions about capacity and competence. They assume that those in need of protection are inherently ‘weak’ or ‘vulnerable’. Without asking for their perspectives, protectionist strategies impose decisions made on behalf of others. Often protectionism is based on patriarchal values and the strategies strengthen regressive social gender and sexuality norms.

For example, young people are often shamed for engaging in sexual activity outside marriage to protect them from violence. In fact, these taboos are used to enforce purity along caste lines and to restrict women and young girl’s bodily autonomy. Another example is of how women and girls with disabilities are forced to stay in institutions against their consent to ‘protect’ them from sexual violence. This is based on the assumption that women and girls with disabilities have no sexual desires and also ignores that they are more vulnerable to GBV in such institutions (see).

While we recognize that young people are especially vulnerable to GBV and in need of protection, there is an important difference between protectionist strategies and strategies that protect rights. We believe that the best way to protect and advance young people’s rights is to prioritize autonomy and freedom, as well as age-appropriate knowledge, information, and enabling spaces that promote fully informed decision-making and access to services. This should be done in line with the Convention of the Rights of the Child’s principle of evolving capacities. The principle recognizes that young people cannot be treated as a homogenous category. We need to adapt different strategies depending on each persons’ unique life experiences and circumstances that shape their levels of maturity, agency, competencies and ability to handle responsibilities.

When protectionism becomes criminalization

Child rights groups and women’s rights groups across Bangladesh, India, Nepal, Pakistan and Sri Lanka have often argued for strong laws and policies to protect young people. Such laws may prevent young people from engaging in sexual activity or exploring their gender identity and penalize those who do so.

These punitive laws, policies and practices are often shaped by patriarchal and heteronormative social norms and customs and strengthen the belief that young people do not have the agency or capability to make decisions about gender and sexual rights. Ultimately, such approaches do not strengthen young people’s rights in the long term.

Criminalizing sexual expression restricts young people’s bodily autonomy

One example of how protectionism can turn into criminalization is India’s Protection of Children from Sexual Offences Act (POCSO), 2012.

POSCO aims to prevent and punish the sexual abuse of young people under 18 years, but, in effect, it criminalizes all forms of sexual activity and expression by and with anyone below that age. This law, like many others globally, contains a clause on mandatory reporting (Section 19). The goal was to encourage people to report GBV against young people, as young people may face barriers in reporting or may not even know that such acts have legal redress. But the effect is to punish young people for engaging in sexual exploration. For example, any person who has knowledge that a person below the age of 18 has engaged in some form of sexual activity can face criminal prosecution if they do not report, regardless of whether or not there was consent. This becomes complicated in cases where the person has very little information about the incident or if a young person has explicitly asked them to keep the matter private.

Since young people cannot discuss or ask any questions related to sexual activity as it may trigger this clause- teachers, counsellors, doctors and NGO workers often find it hard to have conversations on gender and sexuality with them. In effect, such protectionist laws fail to deliver protection and, rather, criminalize young people’s sexuality (for more information, see). This is one example of how laws that aim to protect young people from harm may affect young people’s ability to access SRHR services, their access to comprehensive sexuality education and, of course, their right to privacy and autonomy.

After such punitive laws are enacted, the rates of violence against young people do not usually decrease. Evidence shows that most young people face violence inflicted by family members, acquaintances and intimate partners (see WHO, 2021). They may not recognize what has happened as violence and may even be pressured to keep quiet and not share the incident with anyone. Young people may also blame themselves for ‘inviting’ such situations. This means that there is a low likelihood of them filing an official report to the police to take action. This further reduces the efficacy of harsh penal laws and policies.

In some ways, criminalization may increase the danger that young people face; when young people cannot reach out to their parents, guardians or trusted elders for advice and information, they often turn to their peers who are struggling with the same questions and dilemmas. Very few schools have progressive comprehensive sexuality education (also known as life skills-based education) where young people can discuss power, agency, sexual and gender expression and safe sex practices in a non-judgemental setting. Often such discussions are limited to reproductive health of young women and girls and have no room to talk about pleasure and desire.

Research from different organizations in South Asia shows that criminal laws aiming to protect young people from violence does not provide real protection. Rather, it restricts their rights and leads to more scrutiny and control over their bodily autonomy (for instance, see). Young people are denied any sexual agency and the freedom to express their gender and may even face punishment for what is globally considered ‘age-appropriate’ exploratory behaviour.

The journey of the Flaws in Laws partnership

In 2018, eight organizations working on the rights of young people to access SRHR information and services in South Asia came together to form a partnership called Flaws in Laws. This included Aahung, Pakistan; ARROW, Asia-Pacific; Bandhu Welfare Society, Bangladesh; CREA, India; Hidden Pockets, India; the YP Foundation, India; YUWA, Nepal; and the Youth Advocacy Network of Sri Lanka (YANSL).

We shared our concerns with increasing criminalization of young people’s bodily autonomy and how protectionist approaches to GBV did not address the root causes of violence itself. Instead, such narratives suppress organizations and young activists from imparting accurate, context-specific and age-appropriate information so that young people can make their own informed decisions.

In 2019, we organized a social media campaign named ‘Rethink my freedoms, reimagine my rights, realize my future’ to highlight the negative impact of an over-reliance on punitive laws and policies. The campaign also gave examples of more supportive and enabling environments that support young people – and especially young women and other structurally excluded young people – to demand and access SRH information and services, to express their sexuality and to exercise their rights. (See more about the campaign; artwork).

Where do we go from here?

Building on our collective ideas, CREA prepared a primer and sourcebook titled ‘Challenging criminalization of young people’s bodily autonomy in South Asia’ to encourage critical thinking around protectionism and criminalization.

Both resources share innovative ways groups continue to advance and protect young people’s SRHR in the face of criminalization of young people’s sexuality and protectionist attitudes.

We are keen to learn from rights-based movements on health, gender, sexuality, reproduction, disability, caste and religion to see how protectionism is used as a strategy to undermine rights and how we can counter such narratives.

With the launch of these knowledge resources, we hope to collectively move towards sexuality affirming and non-punitive approaches that respect and protect young people’s health and rights, improve their well-being, and enable them to rethink their lives.

Read and download the CREA primer on Challenging Criminalization of Young People’s Bodily Autonomy (South Asia) here


Aarushi Mahajan and Susana T Fried (CREA) on behalf of Flaws in Laws campaign partners

[Aahung (Pakistan); Hidden Pockets (India); the YP Foundation (India); Youth Advocacy Network of Sri Lanka; YUWA (Nepal)