“Adultery as a criminal offence violates women’s human rights”
GENEVA (18 October 2012) –In many countries of the world, adultery continues to be a crime punishable by severe penalties, including, in the most extreme instances, flogging, death by stoning, or hanging. Adultery laws have usually been drafted and almost always implemented in a manner prejudicial to women. Provisions in penal codes often do not treat women and men equally and establish harsher sanctions for women, and in some countries, rules of evidence value women’s testimony as half that of a man’s.
The United Nations Working Group on discrimination against women in law and in practice is deeply concerned at the criminalization and penalization of adultery whose enforcement leads to discrimination and violence against women. The Working Group notes that in some cases, sentences have been commuted on the grounds of unfair trial, including because of gender bias in the administration of justice, or because application of the death penalty for the crime of adultery is contrary to international standards. Nonetheless, the Working Group considers that adultery must not be classified as a criminal offence at all. The Working Group recognizes that in accordance with some traditions, customs and different legal systems, adultery may constitute a valid ground for bringing a civil proceeding and have legal consequences in divorce cases, the custody of children or the denial of alimony, amongst others. However, it should not be a criminal offence and must not be punishable by fine, imprisonment, flogging, or death by stoning or hanging.
Almost two decades ago, international human rights jurisprudence established that criminalization of sexual relations between consenting adults is a violation of their right to privacy and infringement of article 17 of the International Covenant on Civil and Political Rights. States parties to the Covenant are obliged to ensure that domestic norms take account of developments in international law and incorporate interpretations of the decisions of international courts and international and regional human rights mechanisms, including the treaty bodies and special procedures.
Given continued discrimination and inequalities faced by women, including inferior roles attributed to them by patriarchal and traditional attitudes, and power imbalances in their relations with men, the mere fact of maintaining adultery as a criminal offence, even when it applies to both women and men, means in practice that women mainly will continue to face extreme vulnerabilities, and violation of their human rights to dignity, privacy and equality.
The Working Group, which is specifically mandated to report on good practices by States, notes that some States have remedied this violation of women’s human rights. A good practice in this regard is to be found in a 1996 decision of the Guatemalan Constitutional Court which struck down the Penal Code’s punishment of marital infidelity or adultery based both on the Constitution’s equality guarantees and human rights treaties including the Convention on the Elimination of All Forms of Discrimination against Women. Similarly, in 2007, the Ugandan Constitutional Court overturned the adultery law that penalized women but not their male partners for adultery.
The Working Group therefore calls on Governments, which retain criminalization of adultery or which allow the imposition of fines, imprisonment, flogging, death by stoning or hanging for adultery, to repeal any such provisions.
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