Article by Ryan Thoreson
While human rights mechanisms have long been skeptical of the overzealous use of punishment, they have simultaneously come to frame the criminalization of certain offenses, from gender-based violence to hate speech, as a human rights obligation. The tension between punitive skepticism and punitive obligation has intensified as human rights advocates and institutions have embraced the use of criminal law across a range of contexts and as activists have developed increasingly nuanced understandings of what constitutes legally cognizable harm. In this Article, I examine recent campaigns aiming to criminalize offenses that are broad enough to encompass physical, psychological, sexual, or economic harm as well as more routine forms of indignity and ask when and how human rights bodies should permit or require states to criminalize dignitary offenses within a human rights framework. In Part II, I explore the tension between demanding and rejecting criminalization within human rights law and identify some of the key developments that have contributed to this tension. In Part III, I consider how dignitary harm has functioned to justify the criminalization of conduct and look at three contemporary issues from different parts of the globe--obstetric violence, conversion practices, and surrogacy--to consider the stakes of decisions to criminalize or not criminalize behaviors that implicate the dignity of others. In Part IV, I propose interventions that aim to appreciate the very real dignitary harms that criminal prohibitions seek to condemn without turning to carceral measures that jeopardize the enjoyment of human rights. Because dignity is such a slippery and subjective concept, I argue that states should not be compelled to broadly criminalize practices that threaten human dignity in the private sphere, and that human rights mechanisms should look to existing frameworks for degrading treatment and the advocacy of national, religious, or racial hatred to guide states in this area. Such an approach more properly accords with the punitive tension in human rights law and prevents a laudable concern with human dignity from swallowing other important human rights guarantees.
About the Author
Ryan Thoreson, Associate Professor, University of Cincinnati College of Law.
Citation
100 Tul. L. Rev. 519