Spring 2017 - SEX AND THE LAW by Nexus Magazine

SEX AND Spring 2017

THE LAW Debate: INCEST: THE LAST TABOO? | 38

theme: DOING THE ROBOT: MORE BANG FOR YOUR BOT | 16

Off-topic: THE KENYATTA CASE | 42

COLOPHON

NEXUS MAGAZINE SPRING 2016 Date of Publication 21st March 2017

Nexus

Nexus Student Association nexus@rug.nl

Nexus Magazine Committee 20162017

Kylie McKenzie Morell (Editor in Chief ), Jocelin Tandra, Tamara Poghosian, Tatenda Madondo, Genevieve Lai, Jessica Applemann, Woody Dickenson

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Credit - The Gateway - https://thegatewayonline.ca/tag/sexism/

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The Nexus Magazine Editorial Team independently obtained and organized the content of this magazine, and is responsible for the publication of the Nexus Magazine. The opinions and ideas expressed by authors of articles in this magazine are solely the opinions and ideas of those authors and do not necessarily represent the opinions and ideas of this magazine or its editors or publishers.

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THEME

TABLE OF CONTENTS

HOWEVER WE DRESS WHEREVER WE GO DOING THE ROBOT SEXUAL POLICY SEX CULTURE CONSENT RECLAIMING “FEMINISM” TED TALK: THE LAWS SEX WORKERS WANT DEBATE: INCEST

NEXUS

12 16 20 24 28 32 36 38

38 incest: The last taboo?

DEBATE

Schedule: upcoming events 6

the kenyatta case - ICC

OFF TOPIC 3

EXCHANGE 40 NATHALIE BIENFAIT: ljubljana, slovenia

DEAR READERS,

am very excited to present to you an issue of the magazine that is all about sex! Sex, as we all know is a topic that tends to interest everyone and we thought that it would be good to create an issue of the magazine that focuses on various legal areas that are connected to sex and the implications of those laws. We understand that there are many controversial topics covered in this magazine but we hope that we are able to convey them to you in a mature manner. Consent is a major factor in the laws that surround sex as rape is a critcal issue and we have two articles written by Malva and Tamara on the matter giving both a passionate and more theoretical approach to understanding consent and how to ensure that consent is obtained. Genevive has also written a futuristic (or perhaps not so futuristic) article on sex robots which may soon become a huge industry in which she explores the ethical implications of sex with Robots and how the law can effect the development of this sector.

stance and compares laws sexual policy of states worldwide. Another main concern of modern sex law is feminism in the present day, Jocelin, in her article goes into detail on what feminism looks like today and explains why the struggle for equal rights for men and women is far from over. Jocelin also wrote about our TedTalk in this edition which covers the laws that sex workers themselves would like to see. Our last on topic article is a debate on incest and whether there are exceptional circumstances where it should be condoned. Finally, Gamaliel provided us with an off topic article on the Kenyatta Case exploring the real power of the IC and Nathalie (the previous Nexus Magazine Editor) shared her exchange experience with us. We hope that you enjoy this edition of the magazine and happy reading!

Tatenda, a Zimbabwean herself, wrote a comparative essay on the cultural aspects of sex in both Zimbabwe and The Netherlands focusing on the youth and sexual education and in the same comparative vein Jessica has taken a broader

Best wishes, Kylie Mckenzie Morrell Editor in Chief NEXUS SPRING 2017 |

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SEX AND THE LAW NEXUS SPRING 2017 |

DEBATE: INCEST | 38

HOWEVER WE DRESS, WHER The Case for Affirmative Consent As sexual violence is not a gender-specific issue, I will be using neutral terms throughout this article. However, sexual assault and sexual violence is an issue that overwhelmingly affects women. Nowadays, one in three women experiences physical or sexual violence, a statistic that rises to one in two for transgender women. Violence against women and the LQBTQ+ community is an epidemic and therefore it should be acknowledged as such.

ffirmative consent laws commonly referred to as ‘Yes Means Yes’ laws, state that the person who initiates sexual contact must receive a verbal ‘yes’ from the other person before engaging in any sexual activity and that consent must be ongoing throughout the sexual encounter. In other words: when engaging in any sexual act, silence or indifference is not consent. Only a non-coerced ‘yes’ counts. And if you can’t tell 100%, you have to ask. Even when you are very horny and don’t really

want to. Also, you kind of has to make sure that the other person still wants it while you are at it. These laws, made popular in places like New York and California over the past few years, differ from the current so-called ‘No Means No’ laws, which place on one of the parties the responsibility of saying ‘no’. ‘Yes Means Yes’ is, not surprisingly, a highly controversial concept. Robert Carle wrote for the libertarian outlet Reason “[a]ffirmative consent laws turn normal human interactions into sexual offences”, and in my opinion, that sums up

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REVER WE GO

US AND THE WORLD THE NORDIC MODEL PHOTO YOUTUBE.COM TEXT: MALVA REGUEIRA / LLB 2 Image credits: HeatStreet

pretty well most of the criticisms against affirma- “It’s not realistic to ask people to discuss tive consent laws (I also have some personal res- everything that happens during a hookervations related to that statement that I will discuss later). But I would personally like to analyse up.” the most common arguments against this very simple notion and give my personal perspective. My response to this first one is… why not, though? Yes, we live in a culture that treats sex and sexual interactions very awkwardly, and it is hard and uncom“Asking for consent kills the mood.” fortable to voice our sexual desires, but what is worse? First things first: if talking about sex were such Going through a couple of moments of discomfort mood-killer, phone sex wouldn’t be such a suc- that will eventually make this intimate experience cessful business. Cybersex would not be such objectively better or accidentally raping someone?

a relevant cultural element of our generation. This interaction does not have to be an awk- Something that is shockingly common amongst ciswardly terrible technicality. There are plenty of gender heterosexual couples is anal rape. This situaways of asking for consent without being weird! tion tends to play out like this: the couple is having vaginal intercourse. The boy wants to have anal sex, but boy suspects (or knows!) that by asking for it, 1. Do you want this? boy won’t get it. The boy then tries, with no warning, 2. Are you ready? to insert his penis in the wrong hole. The girl might 3. Do you like this? be okay with it, sure; the girl might be hesitant but 4. Can I __? change her mind, sure; but in MOST cases girl won’t 5. Do you have a condom? be okay with this unannounced change of position. It is really that easy. And she might be comfortable saying, “hey, no, 13

stop”, but she might not be. She might fear he becomes aggressive. Who knows? The fact of the matter is she has never agreed to do what this guy is doing to her. Also, sometimes, the girl does say no. And keeps on saying no. But the guy might say some bullshit, like “trust me”, or “just wait”, or “come on”, until she does not feel comfortable asking him to stop anymore. Disclaimer, everybody: this is UNEQUIVOCALLY rape. And you wanna know what? This situation could have been avoided by a simple “would you like to try anal?”.

It is. That. Simple.

“Some men would just never get laid if only ‘yes’ meant ‘yes’.” Honestly… so be it. Let’s talk about the gender element of this issue for a second. Most cultures in the world condition men to be the romantic or sexual “pursuers” and women to be the “pursued”. This is wrong and problematic because it places much of the responsibility of initiating a sexual relation on men, who have often been indoctrinated with the false idea that “women

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don’t know what they want” and that when a woman says ‘no’ she actually means ‘yes’. But the truth is maybe it took all the courage a woman had to say no the first time. Maybe she fears that the man who disregarded her words will become aggressive like I previously pointed out. Maybe she is allowing this sexual interaction to happen out of paralysing fear. Look, if a woman does not want to have sex with you is never going to be because you asked. It is going to be because she does not want to have sex with you. The men that would “never get laid” if only ‘yes’ means ‘yes’ are predatory, disrespectful, patronising and potentially rapists. Now, going back to Carle’s words: affirmative consent laws would absolutely not turn normal human interactions into sexual offences, they would potential sexual offences into normal human interactions. These laws would force every participant of a sexual relation to be aware and respectful of the other’s boundaries and desires. ‘No Means No’ laws (which, in my opinion, put all the responsibility of avoiding a possible sexual assault on the most vulnerable person in the equation), would be perfectly fine… if they existed in a vacuum. A wonderful, healthy sexual universe lacking sociological and historical factors that make sex kind of weird. Affirmative Consent laws reduce ambiguity in sexual situations; forcing all the parties involved to be more careful and aware of the act they are about to be part of. Embrace affirmative consent laws.

Consent is not a blurred line or a grey area. Consent is black or white. And we should, as a society, strive for a healthier, more open and more satisfactory sexual experience for all of us

Doing the robot R

more bang for your bot

obots, machines and humans have increasingly lived side by side for the past couple of decades, but soon robots will be even closer to humans than originally thought. Experts have started to predict a future where robots may be used and programmed for romantic and sexual interactions with human beings, think less C3PO from Star Wars and more Ex Machina, Westworld and Her. Robots are already being trialled in the sex industry and are already available in some forms commercially, but what are the ethical and legal implications on sex work as we know it? Firstly, what defines a sex robot? This does not necessarily connote an image of Bender from Futurama. Typically a broad ranging concept, a sex robot can be narrowed down to any artefact used for sexual stimulation or, potentially, emotional attachment. What differentiates it from other devices is its likeness to humans in overall look. Many sex robots are considered so because they take a humanoid form, with human-like behaviours and actions and some level of

artificial intelligence, being able to interpret and respond to human signals autonomously. Think robotic sex dolls essentially. Different types of sex robots can vary from those specialising in inducing manual sexual pleasure to those fostering bonds with humans (sexual or otherwise). The first example of a sex robot was Roxxy in 2010, a robot human in appearance, with skin-like material and programmed to move its limbs independently, as well as respond according to certain external stimuli. She was also programmed with a level of artificial intelligence that meant she could talk and listen to users. Whilst obviously a premature prototype that cannot be actually mistaken for a human being, there is nonetheless rapid development and advancement of the robots in their looks and functions, and this could potentially have implications on the sex industry. Prototypes, companies and even some sex doll brothels have been erected in California, Japan and South Korea, some which offer personal customisation, specific fetish functions and configurations. But fear not, competition is not stiff just yet .

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TEXT: GENEVIEVE LAI EXCHANGE

Consider the benefits of a sex robot dominated sex industry: for one, and to be quite frank, robots might actually be better at sex than (at least some) humans at some stage in the future, or may even be more capable of emotional connection to humans. David Levy, a prominent figure in this field and the founder of the Congress on Love and Sex with Robots, argued in 2007 that robots of this nature could, in the future, be programmed to behave out more and more sexual acts, positions and performances, potentially putting the Kamasutra to shame. Similar to this point, sex robots may be able to better cater for the needs of clients, whether that need is emotional or sexual. One could argue that this liberalisation of sex culture enables greater sexual freedom for those who cannot normally in a relatively safe way, and that this will appeal to audiences who struggle to intimately connect with other people, examples including those with mental or physical disabilities or perhaps social anxieties. Artificial intelligence is advancing at a pace so fast that it is almost foreseeable a future where robots would be able to engage in conversations and developing attachment may not be so out of the realm of possibility for all people, including those incapable or unwilling to with humans.

There are also health implications. With the proliferated use of sex robots, the spread of sexually transmitted diseases would theoretically lessen. John Danahar, an academic from the National University of Ireland, hypothesises that, if properly monitored and sanitised (as one would hope…), the spread of sexually transmitted diseases would likely be tempered. Michelle Mars and Ian Yeoman agreed with this premise too. They believed that commercial sex robots would have better capacity to resolve this issue in the sex trade by eradicating, or at least substantially reducing, the spread of such diseases because they could be made from bacteria-resistant fibre, for example. Tangentially, one could also argue that better and healthier sex lives for people (albeit with robots) increases endorphins and, in the sage words of Elle Woods, ‘endorphins make you happy. Happy people just don’t shoot their husbands’. Numerous Cosmopolitan articles will tell you that having good sex regularly is healthy for you and there is truth to this. People having greater access to sex, especially with something personalised to their…tastes, could be the secret to having a happier, and perhaps longer living, society. How handy. Also consider that prostitution is still illegal in most countries – the introduction of sex robots could

serve to reduce illegal, or at least shady, activity or fear of sanction and potentially reduce human trafficking for sexual purposes. The proliferated use of sex robots could serve to actually help in the regulation of the industry itself, allowing for greater control over hours of operation, types of sexual services and moderating sexual specialities, changing the shape of sex tourism as it currently stands. If the future of sex lies in robots and machines, surely this begs the question as to the ethics of sex itself. For example, even if these love machines became a reality, would a human prefer a human or robot prostitute at the end of the day? It is the oldest profession in the world for a reason: human interaction through sexual activities is deeply interpersonal and for some cannot be transferred or replicated in another artefact. Would having sex with a robot devalue the meaning of sex and human connection, or be merely another way to experience sexual and emotional connection? Many polls have shown that only a small proportion of the population would actually prefer sex with robots. Danaher also contends that prostitution will be resilient to technological unemployment. He argues that, at its core, sex work will always face a demand for human interaction. To this extent, one could argue that it may be likely sex robots donâ&#x20AC;&#x2122;t have a particularly bright future in the industry, certainly not one to the extent that Amsterdamâ&#x20AC;&#x2122;s Red Light District will be mechanised completely. Moreover there are ethical concerns as to how actions with a sex robot may affect daily human life or how humans perceive such human interaction. For example, if a spouse has sexual intercourse with a robot, is it still considered as infidelity? If a sexual interaction is deemed illicit in a particular human circumstance, is it also illegal when performed with a robot? Commentators have argued that the rise of sex robots in the sex industry will only serve to perpetuate power inequalities and violence in sexual interactions because of the lowered level of human empathy and stereotyping of the design of sex robots themselves. Research has shown that men would likely be the target demographic of the sex robot industry, with women less inclined

Image credits: Good Kid. MAAD FX

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to experiment with sex robots. Through this targeting, products developed are more likely to reflect the needs and desires of a heterosexual male, that meaning sex robots will emulate female prostitutes and stereotypes. The Campaign Against Sex Robots (CASR) launched in September 2015 and opposed the development of sex robots on the basis that the design of sex robots was grounded in a harmful model of male-female relations. Sinziana Gutiu argued that the prostitution of sex robots would contribute to the dehumanisation of sex and intimacy, and could possibly reinforce the notion of â&#x20AC;&#x2DC;women [as] ever-consenting beingsâ&#x20AC;&#x2122;. Sex robots could be programmed to act out violent, and perhaps illicit, sexual fantasies and erode the concept of consent. This discussion goes to the heart of what the ethics of human interaction are in gender and sex.

entirely libertarian framework is entirely dependent on the politics of the day. Some form of regulation would be wise, ensuring the basic safety of such devices whilst also possibly prohibiting more dangerous or controversial types of sex robots. And whilst the benefits of an R-rated Tickle Me Elmo may address the pertinent issues of loneliness and satisfaction faced in society, people do need to be wary. What will become of the future of the sex industry and of sex itself with the introduction of sex robots? At this stage, itâ&#x20AC;&#x2122;s hard to say (pun intended)

The point of the matter is that the emergence of sex robots will mean legislators need to address it at some point. Whether that takes the form of a prohibitive or

Image credits: True Conpanion

SEXUAL COMPARING SEX LAW IN DIFFERNT NATIONS

“T

he present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of paragraph 2 of Article 8 (art. 8-2).” (cons. 52; Dudgeon v UK) Article 8 – if you’re a law student reading this, your brain probably just immediately went “private life!” or something along the lines of that. Article 8 of the European Convention of Human rights is one of the existent provisions guaranteeing respect (by authorities) for one’s private life, family life, home, and correspondence. We would probably all agree with the Court that sexuality is one of the most private aspects of our lives. Thus, we don’t need anyone, especially not strangers, interfering with it. Or do we?

As everything is a matter of preferences, everyone likes to determine themselves who they would (not) like to sleep with and in which surroundings. However, I don’t know about you, but I don’t really want to be seeing PDA around me everywhere I go. In fact, in my high school, there was a couple and wherever you’d see them – they would be making out. They just wouldn’t stop. I really wished there was a rule against this. Also, what about the protection of morals? Most societies want to hide sexuality from (young) children and preserve their innocence for as long as possible. When taking a peek at different places on this planet, we realise that opinions may strongly part as to what the right age for exposure is, or as Germans would say “to be enlightened”. This discrepancy is portrayed by movie ratings, for example – whereas a German child/teen may already be allowed to watch a movie at the age of twelve, the same movie may be rated R in the United States, meaning you have to be 18 years of age to see it

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POLICY without the company of your parent or guardian. To add to this there are countries like India where sexual content in movies is mostly just avoided. It is probably unattainable to find a perfect age, and admittedly, when thinking about this matter, I came across an odd issue: I do agree that children need not be thinking about sexuality at a young age, but I could not think of a rational reason for this. It seems futile to try to keep children or teenagers in the dark for as long as possible because at some point they will just find out themselves. I would definitely argue that it is best for children to be educated about sexuality itself and the correlating rights before puberty, to reduce the risk of wrong information, unwanted pregnancies, rape, and sexually transmitted diseases and to allow for self-determination.

The “protection of morals” is also mentioned in article 8(2) ECHR, meaning a government may use this as an argument in favour of interfering with a person’s privacy. And that is exactly what the government

onment and ten years’ imprisonment, respectively. Buggery consists of sexual intercourse per anum by a man with a man or a woman, or per anum or per vagina by a man or a woman with an animal. By section 11 of the 1885 Act, it is an offence, punishable with a maximum of two years’ imprisonment, for any male person, in public or in private, to commit an act of “gross indecency” with another male. “Gross indecency” is not statutorily defined but relates to any act involving sexual indecency between male persons; according to the evidence submitted to the Wolfenden Committee (see paragraph 17 below), it usually takes the form of mutual masturbation, inter-crural contact or oral-genital contact.” The government claimed that Northern Irish society was more conservative and religious than the remainder of the United Kingdom, and the Court did not deny this as this “was illustrat-

did in Dudgeon v United Kingdom (1981), where a ed by more restrictive laws even in the (male) homosexual complained about the follow- field of heterosexual conduct” (§56). ing laws in force in Northern Ireland at the time. “There is, the Court accepts, a strong body of opposition stemming from a genuine and sincere “Under sections 61 and 62 of the 1861 Act, conviction shared by a large number of responsible members of the Northern Irish community committing and attempting to commit that a change in the law would be seriously dambuggery are made offences punishable aging to the moral fabric of society (…).”(§57)

with maximum sentences of life impris-

Image credits: Wikipedia

However they finally held that “the risk of harm to

vulnerable sections of society requiring protection” does not justify criminalizing sexual acts between homosexual men, because “the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant” outweigh the required protection of morals, meaning that the interference is not proportionate, especially considering that the sexual acts between the two men did not occur in public. (§60) What can be taken away from this case very well reflects my own opinion – if it doesn’t affect others, then people’s private sphere should not be intruded – let them be. As we all know, the Netherlands have quite a bit of that laisser faire attitude, which shows as they have (as the first country in the world) been legally

marrying homosexuals since 2001, and have been recognizing prostitution as a legal profession since 1988 (it had been legal since 1830, but not always commercially). This may have people sceptical, but it is actually quite beneficial to do so, because legalisation allows for regulation: In Amsterdam, for instance, “the police, urban district council and municipal health authorities are the main bodies responsible for enforcing the existing laws. Police control sex establishments, to verify that minors or illegal aliens are not working as prostitutes. Also creating a nuisance to the surrounding area is seen as a reason to the eventual refusal of the license to lead a sex business. Infringements such as the presence of illegal prostitutes or employment of the minors may be the reason for the business closure. In 2007 the municipality of Amsterdam withdrew the licenses to as many as 30 different sex businesses, accusing them of breaking the existing laws”.

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Additionally, multiple organisations exist supporting prostitutes concerning STDs and psychologically, and recognising prostitution as a profession allows for economic benefit for the country and respect/dignity of the workers.

said to cause harm. Furthermore, it is highly questionable whether this law can possibly be enforced since it would probably be hard to prove, and authorities most likely have much more important matters to deal with.

As sexuality is a very broad topic, so are the correIt must be noted however that the Netherlands also sponding laws, ranging from fundamental rights to have their limits. In 2008 parliament unan- very odd rules. The set of laws needed to maintain a and happy society will often differ based on culimously voted in favour of a ban on sex safe ture and history of the country, as we all have differwith animals and corresponding pornog- ent values. However, there is supposedly a common raphy, both of which had previously only ground: While we want to have as much privacy and been penalised where animal suffering freedom as possible, the state should still be able to into the extent necessary to uphold human rights was involved. This was of more relevance than terfere and ensure the freedom of the weaker parties, just as you might think: According to a 2007 survey by the with any other laws Algemeen Dagblad, the Netherlands accounted for around 80% of the distribution of bestiality porn. The Dutch are not the only people who care for their animals, though. In Massachusetts, it is illegal

to have sex with a rodeo clown in the presence of a horse. This is one of the many strange

and specific laws existing in the USA that make you wonder what led to their establishment. In Alexandria, Minnesota, it is illegal to have sex with your wife if your breath smells of garlic, onions, or sardines. This is rather a matter of common sense and should not form part of the legislation, as it unnecessarily interferes with peopleâ&#x20AC;&#x2122;s private life whilst a â&#x20AC;&#x153;violationâ&#x20AC;? might lead to a feeling of discomfort, but can hardly be

TEXT: JESSICA APPLEMANN | LLB 1

SEX CULTURE a look at how different cultures treat sex

Image credits: Hufington Post

he world is made up of different societies. These societies shape our views towards many things in life, such as gender roles, relationships, and occupations and so on. They are responsible for the attitudes we develop towards issues that affect our lives. And when it comes to sex, the difference in the ways societies see it is remarkable. Take the perspective of one who grew up in an African society and compare it to that of one who grew up in a European society. For this article, I will take an in-depth look at Zimbabwe and the Netherlands. If you were to examine their attitudes towards sex, you would see a stark difference. Whilst sex in a Zimbabwean society is viewed within the framework of a patriarchy and treated as an issue of morality, sex in The Netherlands tends to be seen through the lens of recreation, with very little moral expectations arising from it. On a cultural

and social scale, sex in Zimbabwe is taken with the purpose of reproduction, one to be enjoyed within the union of matrimony. There is an evident gender misbalance with regards to the sexual conduct that is expected and accepted by men and women. This is different from the Netherlands, where sex is seen within the context of recreation. It does not have the same morality complex placed on it nor is there any cultural expectation to keep it within the confines of marriage. However, vestiges of a patriarchy with regards to gender misbalance remain. There is also a notable difference in sex education, though similarities do exist. Though it is arguably not on the same level as that of the Zimbabwean society, elements of it are still present. The two societies are very different, though one cannot deny the few parallels between the two once this issue is examined in close detail.

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In Zimbabwean culture, sex, for the most part, is viewed with a reproductive purpose. It is widespread belief that it must happen within the confines of a marital union between a man and a woman. Sex enjoyed outside of that is regarded as a taboo and in violation of the Zimbabwean cultural values of abstinence and morality. This cultural standpoint is perpetuated by religion. Zimbabwe is a predominantly Christian nation, with over 90% of the population identifying as some form of the Christian denomination. As a result, certain passages of the Bible are cherry picked to support and perpetuate this culture. Consequentially, this advances the social norm of sex being a taboo outside of marriage. This is in contrast with the Netherlands, where the presence of a moral hold on sex is, for the most part, non-existent. The idea of sex being preserved for matrimony is something that is upheld by the religious sect of the Dutch population (mainly Christianity and Islam), as opposed to it being grounded within Dutch culture. The concept of sex being recreational and for the enjoyment for all consenting people, regardless of relationship status, is more entertained. I recently spoke to a Dutch university student studying in Groningen who testified that there is “a lot of peer pressure” amongst youth and young adults to engage in sexual activity from as young as 15. This demonstrates the widespread acceptance of sex, and eagerness amongst youth to have it, within the Dutch society. One notable aspect of the view of sex in Zimbabwean society is the gender misbalance with regards to what is acceptable of a male and that of a female. After speaking to a Zimbabwean woman who currently holds a notable role in the media over there, she revealed to me that there has always been an insistence on Zimbabwean girls and women keeping their “purity” until the night of their wedding, whilst for boys and men, that unwritten cultural stipulation is barely applied. There is also an ardent glorification of Christian faith legends like David, who is most notably known for engaging in out of wedlock sex and still being a man “after God’s own heart”. Another example would be King Solomon who is believed to have had 700 wives. Zimbabwean society tends to

TEXT: TATENDA MADONDO / LLB 1

use these Christian ideals as an excuse to advance the cause of men’s sexual liberty and women’s sexual restriction. In the Netherlands, vestiges of this mindset are still present (though not from a religious standpoint) but not to that great extent. The sexuality of both men and women is accepted and in some cases praised. The double standard that is men being able to “sow their oats” whilst women keep their legs closed, is not as prevalent in a Dutch society. However, one cannot say that it is non-existent; just not common. In other words, there is very little pressure on females in Dutch culture to “preserve their purity”. However, in Zimbabwean culture there is pressure on the girl child to remain a virgin until she is married whilst on the other hand, society lets boys off the hook, thus resulting in a lot of teen pregnancies. This shows similarity to the earlier point made about Dutch youth feeling pressure to engage in sexual activity early. That pressure is also amongst Zimbabwean youth to engage in sexual activity. Despite the moral lens that sex is viewed with, reports are showing an increasing number of Zimbabwean teens having sex. These, however, have resulted in a rising number of teen pregnancies. For example, Zimbabwean media outlet “Newsday” reported that 144 out of 1000 pregnancies are carried by teen girls between 13 and 17. This can be compared to the Netherlands where in 2011, it was reported by Dutch Daily News that only 5 out of 1000 pregnancies were of teenaged girls.

Image credits: LA Times

This begs one to question why teen pregnancies are prevalent within a society where premarital sex is deemed shameful, as opposed to a society were sex is widely accepted. The answer to that is sex education. And this is not limited to the one taught in schools. But rather, it is sexual education on a social and parental spectrum. For instance, traditionally in Zimbabwe (more so in the past than in present day); sex education for girls was done by female members of the family, especially aunts and mothers. Boys tended to receive their sex education from male members of the family and/or their peers. The reason for this is because there was discomfort on the part of parents to discuss sex as it was a “dirty” and “taboo” word. However, there has been great progress in the Zimbabwean society in this matter. Due to growing globalisation, mainly because of the influence of Western media, and the increasing awareness to public education, there is an increased dialogue across all mediums to educate parents and young

people of issues pertaining to sex. It has become common for primary and secondary schools in Zimbabwe to facilitate programs that educate young students on sex, and raise awareness about issues of concern like STDs. Also, family planning services and the availability of contraceptives are on a steady rise. For example, there are websites such as rand.org that contain information about family planning and contraceptives in Zimbabwe. This is where similarities can be drawn between the Zimbabwean and Dutch societies. As in Zimbabwe, sex education for youth is taken seriously and is of great importance. Susan Marling from the Independent spoke of what is described as “The Dutch Way” – this is a name given to the practice of Dutch parents being very open and honest about matters that pertain to sex with their children. The same can reportedly be said for the likes of Denmark and Germany, where there too are high levels of teen sexual activity and parents entertain that fact more easily than in Zimbabwe

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or South Africa. It is believed that the reason why teen pregnancy rates in the Netherlands is one of the lowest in a world is because of this; educating youth about sex and contraception encourages them to engage in it safely, thus preventing a high number of teen pregnancies and abortion. Though it appears that the same cannot be said for Zimbabwe as of late but with the progress being made, as mentioned above, a similar trend should begin to take form. Sex is something that is common to almost every human being globally. But, when you examine the world cultures and societies, you come to realise how differently it is viewed by them. Some cultures see it as a moral issue, only created for marriage. Other cultures view it within the scope of recreation, bound very little by any social obligation. There is a long-standing double standard when it comes to how men and women enjoy sex; for men, it is part of what defines manhood and for women, it determines their purity. This is more prevalent in societies that are still grounded in a patriarchy, such as Zimbabwe, but one cannot deny the minor presence of this standard

even in a progressive society like the Netherlands. One of the necessary elements that can promote the practising of safe-sex amongst youth and the eradication of teen pregnancies is education. Being educated about contraception and other matters that pertain to sex is vital in ensuring that STD rates are kept at a minimum and teen pregnancies become less prevalent. From examining the different attitudes towards sex, one can conclude that there is no “correct” way to look at it per-say. Though one who comes from a European society like the Netherlands can look at the overall African attitude towards sex and think it baffling, an African themselves would beg to differ. They would argue that those social norms are what define the real identity of “Africanness”, as the culture is proudly rooted in morality and faith. An African may consider the European idea of sex as equally baffling, while the European themselves sees it as a normal way of life. It just goes to show that we are all divided by a common thing

CONSENT A Theoretical Approach In todayâ&#x20AC;&#x2122;s society, our understanding of the relation between sex and law is shaped by different theories including liberalism and feminism. As we all know that there is a great distinction between consensual and non-consensual sex. The absence of consent demarcates sex that is going to be regarded as criminal in nature and it is seen as a serious crime. It is seen as criminal because it goes against the morality of human nature and violates one of the most important human rights, the right to personal autonomy.

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TAMARA POGHOSIAN / LLB 1

Liberal theorists focused on the definition of non-consensual sex throughout decades. John S. Mill from the 19th century to Stephen Shulhofen during the 20th and 21st century have discussed and broadened the definition of sexual assault. Their main aim was to bring the definition of sexual assault not only on the streets but also into the bedrooms of married couples. There have been many arguments regarding sexual intercourse within marriage. Liberals believe that non-consensual intercourse is wrong in all circumstances as it is against morality.

sex happens because of coercive forces, future violence and social or economic pressure that force women and girls to consensually have a sexual intercourse. However, there is a problematic feature of the radical feminist argument;. rape law denies the distinctiveness of the experiences of non-consensual sex, and hence the harm that it causes. Even if we assume the coercion produces consent to sex it does not mean that consensual and non-consensual sex are the same, or that the harm that they cause is the same. Thus, there is a difference between the coercive forces that draw out consent and In the 1980s Catherine MacKinnon, a radical fem- those coercive forces that are ignored by the actor. inist in law, argued that the line between the consensual and non-consensual sex which was drawn Letâ&#x20AC;&#x2122;s compare this with a situation when one gets by liberals falsifies the degree of coercion that is im- robbed on the street and when one is exploited by posed upon women by men in our ordinary lives. an employer in a capitalist economy. During robRadical feminists believe that at times consensual beries there is a fear that one might be killed - that

one’s existence, and not just one’s stateliness, will be eradicated. During a robbery, one goes through trauma and fear in such a way that exploitation cannot be compared to. Certainly, it can be said that exploitation is more insidious and invisible. Why did I mention this? Well, the same is true for consensual and non-consensual sex. Sex might be consensual because of coercion however, it cannot be compared to non-consensual sex as the use of force is less. Compulsory heterosexuality that elicits consent to unwanted sex over a long time subverts an individual’s sovereignty, while the traumatic experience of rape might underscore the importance of sovereignty and autonomy as essential for a normal life. In both cases, those who experience this are scarred because of the trauma. Usually, the lawmakers and the society do not notice or give importance to what damage caused to the victim. No matter how severe the punishment is going to be for the one who has caused the harm, the consequences of his or her actions will never be forgotten by the victim. So how do the countries deal with the offence of rape? In most countries, rape is considered as a serious crime. During the trials of such cases, the main question that is asked in the court is whether there was consent or not. The issue of consent may be difficult to prove in certain cases. However, why is this? When asking someone if they understand the definition of consent, the vast majority show that they do. However, when it comes to the point where one has to establish whether someone is willing to have a sexual intercourse it can be more complicated. In many cases during the past women would be blamed for allowing themselves to be raped. The perpetrators would be forgiven for acting on some kind of instinct. Because of this reason, most of the rape cases do not go through legal proceedings because women try to avoid this as in the past the legal authorities did not convict the offenders of rape solely depending on the evidence provided by the women alone. However, the behaviour of the authorities

has changed within time and nowadays in most of the countries, when the woman complains about such a case, her words are taken more seriously. In America, the definition of the offence of rape is written in the Sexual Offenses Act 2003. Since then the definition has established clear grounds of understanding. The definition states: ‘someone consents to vaginal, anal or oral penetration only if she/he agrees by choice and has the freedom and capacity to make that choice’. This definition is quite wide. One might think that it adds more confusion than clarity in certain cases. What does ‘capacity’ mean? This means that someone is not under severe influence of drinks or drugs, or someone who may be underage or have some disabilities, or who is asleep. Freedom in this definition means that someone is not under any kind of pressure to consent to a sexual intercourse. It is important to understand that this definition cannot be interpreted only in one way. If you think that rape is only when violence has been used, well you would be wrong. During the rape, violence is not necessary. A different interpretation of this act is where a man has sex with a woman without her consent. However, consent is not black and white. A man can be held responsible for the offence of rape if he ‘tricks’ the woman into bed. Therefore, the offence of rape is not only when the man uses force to have sexual intercourse with the woman. The following example will show how the court’s interpretation of this act is complex. In 2009 there was a case the woman and the man were in a relationship. They had sexual intercourse many times, however, the complainant wanted to end the relationship. When she wanted to do so, the defendant hatched an elaborate plan to continue their relationship by impersonating a police officer with a text message. The defendant wanted to trick and manipulate the victim into believing that if she does not continue the

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relationship and have a consensual intercourse with the defendant, she will be fined. It is clear that she did not want to continue this relationship and she definitely did not give her consent freely. Therefore, the court came to a conclusion that the defendant was guilty of the offence of rape. The act of rape can be committed in different circumstances and different ways. This is why it is important to take into consideration the circumstances that this act was committed to. There is a very clever animation that compares sexual consent to having a cup of tea. ‘You wouldn’t force or pressure someone into having a cup of tea, and you can tell when someone wants a cup of tea or not. If someone says that they want a cup of tea one minutes, they can change their mind the next and should not be pressured to drink the tea. ‘ This sounds very simple enough, then so is the issue to consent to sex

RECLAIMING “ I

think the problem with our current society is that there are too many available platforms to express ourselves: suddenly everyone is an activist. Feminism becomes a rather uncomfortable topic of discussion because of its rampage social media activism, creating a particularly strong image of feminists that works as a double-edged sword: ‘feminism’ becomes an empowered term used to verbalise social gender-based injustices, but at the same time, too many feminists existing within our platforms don’t even realise what really is the problem with the world. They become feminists to become an activist, and they’re nothing more than annoying keyboard warriors. This makes ‘feminist’ an easy category to be dismissed, because within feminists themselves, they can’t seem to agree whether Emma Watson showing her underboob in a magazine cover is a feminist act or not.

cultural backgrounds and histories, and this can be resolved by using ‘gender’ as an analytical category, rather than treated as a victimised identity or as a universal causal force. It seems obvious that equal participation in political life is crucial to ensure gender equality in the legislative sphere. Based on a research documenting the engagement of New Zealand women with the political process between 1970 to 2008, it is found that electoral reform in the form of mixed-member proportional voting has produced the greatest increase in formal participation of women within New Zealand’s Parliament. These reforms were introduced against the backdrop of an unwritten constitution and a strong culture of political accountability. However, the enforcement of equal participation within the political process is rather complex, especially in non-liberal countries, taking Vietnam as an example, where feminism is used as a Out of 194 written constitutions in the disparaging label associated with Western individualor the bourgeouise. Recently, the terminology of world, almost all guarantee equality in ism ‘women emancipation’ has shifted due to UN-sponexpress terms, and almost two-thirds sored programs focusing on gender mainstreaming, govern under principles of equality or gender equality, and women’s rights. These official non-discrimination on the basis of gender. commitments continue to find hindrance in its enforcement due to ideological and cultural constraints It seems from the surface, gender equality has al- and by the limitations on equality and freedom. ready been recognised in our society as an acceptable norm. However, gender encompasses, directly An example to illustrate the need for feminism nowor tacitly, into various aspects of our lives; even in adays is regarding polygamy laws, particularly in ones seemingly gender-neutral such as worker rights. Canada. In Canada over a century ago, the first laws As of 2012, the United States, for example, does not criminalising polygamy were written. The crime remandate paid maternal leave for female workers. fers to polygamy instead of ‘polygyny’, in which a man has more than one wife, or ‘polyandry’, where a womFeminism in public law is a rather complex issue. The an has more than one husband. This gender-neutral problem lies in the notion of gender in itself: gender legislation, criminalising both women and men who is a powerful construct based on perceived differ- commit polygamy, creates an illusion of gender equalences between the sexes, that has served to organise ity. The Polygamy Reference case in 2012 decided that social relations and roles in various ways throughout polygamy shall remains criminalised due to its unthe world. Gender issues are often veiled by various constitutional nature. Supreme Court Judge Richard NEXUS SPRING 2017 |

“FEMINISIM” Bauman decided that the law ‘violates the religious quired financial resourcfreedom of fundamentalist Mormons, but the harm es to appeal the case. against women and children outweighs that concern’. Moving onto the legislaHe affirmed that the state is able to tive facts established for purposes of the case, charge women with the crime of po- the the evidences presented lygamy, but at the same time depicted by the parties constitutthem as a victim harmed by polygamy. ing the majority of the legislative facts include The inconsistency of Judge Bauman’s portrayal of scholarly research studwomen is self-evident. It must be stated that the Po- ies, literature reviews and lygamy Reference case is merely a novel case, mostly statistical analyses by because it was an opinion issued from a first instance academics from hisJOCELIN TJANDRA/ LLB 2 court, with no appeal following the case. Men, pre- tory, classics, religious dominantly non-polygamous men, dominated the studies, sociology, scene of the case: the only women participating in the law, political psychology and evolutionary psychology proceedings were some of the eleven non-governmen- departments in the US and Canada. A particular cattal interveners that had neither standing nor the re- egory has always been missing from such polygamy

cases: personal and experiential facts by persons in polygamous relationships. In this particular case, there were studies grouped under ‘Embodied Evidence’ that mentioned experiences of individuals in polygamous relationships. However, since The Polygamy Reference case was a constitutional reference case, Judge Bauman ruled that such cases do not have immediate parties, hence there ‘could be no specific “who” that did “what, where, when, how, and with what motive or intent”’. Thus he concluded the Embodied Evidences to have no adjudicative facts of relevance to the case.

With this conclusion, Judge Bauman eliminated the relevance of evidence, minimal as it was, of the voices of women most influenced by the existence of such law. In contrast, the case attached particular weight to evidences by male expert witnesses, as such Dr. Walter Scheidel, whom testified that “socially imposed universal monogamy predated Christianity, having arisen in Greek and Roman times to mitigate sexual competition among men, thereby also diminishing the intensity and divisiveness of other forms of male competition”. There have been no reliable statistics documenting polygamy incidents in Canada. At most, it is believed that it is a cultural practice endorsed in aboriginal culture due to the existence of recorded convictions of polygamy on (mostly) aboriginal men. Avigail Eisenberg, a professor of Political Science focusing on In-

digenous Governance Programme, defined polygamy as a practice with strong cultural influences: ‘many people, including some sizeable communities, openly engage in it, either as a matter of lifestyle, because it is culturally familiar and accepted, or because it is religiously mandated.’ In the Polygamy Reference case, the case did more than silencing women: it systematically silenced many multicultural groups, such as Muslim communities, which encompassed 3.2% of Canada’s population. Given the significance of multiculturalism in Canada, it was supposed to be within a judge’s responsibility to ensure Muslim women’s voices were heard. Instead, Judge Bauman declared: “I did not hear oral evidence from any experts on Islam, nor did any participants in Muslim polygamy testify.” Many writers have associated the reason behind the lack of Muslim culture appreciation to the Islamophobic public, whom fear that polygamy in its Islamic form is resurgent along with fundamental Islam itself. Whatever the reason, it is beyond doubt that the case has successfully silenced women in its entirety, and is currently used by feminists around the world to document the domination of non-polygamous men’s voices describing their own victimhood, while women were given ambivalent legal status attached to them: they might be offenders or they might be victims, and the difference really does not matter. Polygamy for women is prohibited anyway, as much as it is for men.

This is how ‘gender equality’ currently works in out society.

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It is important to note that prejudice from gender in the judiciary could only exist if it is perpetuated and supported by other forms of gender prejudice in different bands, such as the legislative body. Since the 1980s, scholars have argued that the patriarchal system of our society is featured by the social control over women’s sexuality, sexual expression and reproduction. In the past, women were subsumed in the social system as the sexual property of men, expected to provide sexual and reproductive services as exchange of a ‘respectable’ status within families and larger social structures. The sexual ‘deviance’ of women marks them as not respectable, bringing them to a lower status of class. Although this was seen as a thing of the past, it is hard to argue that its effects still linger within our criminal justice systems. The movement to establish women’s right to control their own sexuality and reproduction started in the beginning of 20th century, particularly in the United States. Since then, movements on women’s rights were concentrated on issues that were most important to White upper- and middle-class Americans: issues affecting mostly women of color and poor women were neglected such as sterilisation abuses and inadequate access to health services. It is beyond doubt that women have changed history within its time: current societies have shown acceptance in liberalising abortion from criminalisation. However, legislation alone is not sufficient. Recent data in 2014 shows that 39% of the world’s population still lives in countries with highly restrictive laws governing abortion, These countries either prohibit abortion altogether or allow the procedure only to save a woman’s life or to preserve her health. As a result, nearly half of all abortions worldwide are unsafe. The United Nations Special Rappoteur on Torture, Juan Mendez, focused on the lack of access to abortion as a form of abuse in health care settings, and declared that the denial of reproductive justice is discrimination based on gender and denial of that right can cause “tremendous and lasting physical and emotional suffering to women”. Such violations include denial of legally available health services like abortion and post-abortion care, violations of medical secrecy and confidentiality in healthcare settings, and forcing confessions to criminalise those that have undergone abortion. These developments have enforced women’s position in the political sphere, but it is important to note that Western feminism is a much more acceptable norm in liberal countries, and not so much in their developing countries’ counterparts. Feminism as introduced in the West stresses the cen35

trality of emphasising women’s position within the economic sphere. The impact of colonialism and capitalism have exacerbated existing gender divisions, and the type and level of industrialisation has led to the creation of very diverse circumstances for women. Furthermore, feminism is also complicated by social structures and traditions. It is accepted in conservatism ‘culture’ that women should be kept subordinate legally and economically, but it is really a ‘tradition’ instead of culture. Culture here is seen as something we return to, instead of a complex and dynamic contemporary process that is aiming to change the world. For women in developed countries, crisis in feminism is paralleled by their crisis in development, which plays a role in simplifying cultural comparisons without recourse to political and economic analysis. To change this, we must accept that patriarchal practices are an universal problem in varying degrees around the world, that is not the fault of one culture or religion. In short, I conclude that feminism is still very much needed in our current societies. We have seen how polygamy laws were created and justified by the courts by silencing women, how history has long justified gender prejudices in the world, and how culture should be used as a tool for feminists rather than as justifications for impediments of their struggles. Even though gender equality is already seen as the norm, in practice gender equality encompasses various aspects that cannot be solved simply by declaring “women are equal to men”. There might be legislations explicitly mentioning so, but the fight for feminists across the world is not over.

Feminism is not about hating men; feminism is about the fight women have pursued for decades to ensure that women earn the respoct as human beings they deserve in every aspect of their lives

TED

Talk TEXT: JOCELIN TJANDRA

THE LAWS THAT SEX WORKERS REALLY WANT

Juno Mac started her TED talk sharing her experience being a sex worker and connected her journey with legal approaches around sex work in the world. The first legal approach is full criminalisation for the seller, buyer and third parties. Legislators wish criminalisation would increase fear of getting arrested and deter sex work, but criminalisation is a trap: when you’re forced between obeying the law and feeding your family, you’re going to take the risk anyway. It’s hard to get a conventional job with a criminal record, hence after getting arrested most workers stay in more flexible, informal economy. In short, the law ended up forcing you to keep selling sex, a counterproductive result of such criminalisation. In many places, girls have been subjected to bribe or even having sex with police officers to avoid arrest, an example is the documented torture of police and prison guards in Cambodia. Furthermore, full criminalisation often creates a policy that would create a sense of insecurity to carry condoms, since condoms can legally be used as evidence of prostitution. It results in sex workers leaving their condoms at home to prevent possible arrest, forcing sex workers to choose between risking arrest or having risky sex.

The second legal approach is partial criminalisation, where buying and selling sex are legal, but surrounding activities such as brothel-keeping or soliciting on the street are banned. Laws like these recognise sex workers as a legal job as long as it is done behind closed doors and all alone because brothel-keeping is described as two or more sex workers working together. Making such illegal means sex workers have to work alone, increasing their vulnerability to violent offenders. Prohibition of street prostitution also is counterproductive — to avoid getting arrested, street workers take risks to avoid detection by working in isolated locations because getting caught in the streets imply a possible imposition of fine. It

was the need for money that saw you in the streets in the first place, how do you pay that fine without going back to the streets? Criminalising sex workers hurt sex workers, which leads us to the third approach, known as the End-Demand approach, which is the Swedish or Nordic model of sex-work law. The idea behind this law is selling sex is intrinsically harmful, so you are helping sex workers by removing the option. However, there has been no evidence that

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this approach works: there’s just as much prostitution in Sweden as there was before because people selling sex often don’t have other income options. If you need that money, the only effect on dropping an entire market of it would force sex workers to lower their prices or offer riskier sexual services. The need for more clients also pushes sex workers to seek the help of a manager. Instead, such laws create room to an activity described as pimping, leaving the great room of control by potentially abusive third parties. The last approach is known as legalisation, used by countries like Netherlands, Germany and Nevada in the United States. In state-controlled prostitution, commercial sex is only possible in legally-designated areas or venues, and sex workers are made to comply with special restrictions like registration and forced health checks. This sounds great on paper, but politicians created a system around the sex industry that is expensive and difficult to comply with. Hence, it created a two-tiered system: legal and illegal work, which is why it’s called ‘backdoor criminalisation’. Rich, well-connected brothels can comply with regulations, but many sex workers find these hoops impossible to jump through. It is possible to gain licences in principle, but they take time and cost money: it is not an option for someone who’s desperate and needs money for the night. In this system, the most vulnerable are people who are forced to work illegally. These laws reinforce stigma and hatred

People worry that selling sex is degrading: is it more degrading than going hungry or seeing your children go hungry? There’s no industry: and prostitution is an easy target.

call to ban rich people from hiring nannies or getting manicures, even though the most workforce behind such industries are usually poor, migrant women. People get really hung up on the question, “Well, would you want your daughter doing it?” That’s the wrong question. Instead, imagine if she is doing it. How safe is she at work tonight? Why isn’t she safer? Something never asked is “what do sex workers want?” After all, sex workers are the ones most affected by these laws. New Zealand decriminalised sex work in 2003, meaning it removed laws that punitively target sex industry, treating sex work much like any other kind of work. New Zealand has not seen an increase in a number of people doing sex work, but decriminalising has made it a lot safer. The country also has a collaboration between legislators and a union of sex workers known as the New Zealand Prostitutes’ Collective. Sex work is work, too. Most of us have fixed feelings about our work, but feelings are not relevant: how we feel about our work doesn’t matter, and how others feel about our work certainly doesn’t either. What important is that we have the right to work safely and on our own terms. If you care about gender equality or poverty or migration or public health, then sex worker rights matter to you. The distinction

against sex workers. It is shown that many attempts to control or prevent sex work between victim and empowered is imhave been counterproductive, and it’s in- aginary: it exists purely to discredit sex teresting to see why such harmful prohibi- workers and make it easy to ignore us. tions are still popular in many legal systems. Sex work has always been a survival strategy of all kinds of unpopular minority groups: people of colour, migrants, people with disabilities, LGBTQ communities, and women. These are the groups most heavily profiled and punished through prohibitionist law. These laws have support precisely because they target people that voters don’t want to see or know about. Another reason why prohibition is appealing is because of the fear of trafficking. Forced labour occur in many industries, and it is best addressed if legislations target specific abuses, not the entire

INCEST: THE LAST TABOO? When we hear the word “incest” most people’s immediate reaction is disgust but what if there are situations where it is more complicated? Is it possible that there are times when incest should be condoned? In many cases where children are given up for adoption and are finally reunited with their birth parents or siblings they will experience very strong feelings of sexual attraction in fact according to a UCL study, 50% of people who are raised separately from their biological families and reunited as adults report having sexual feelings towards the person they are reunited with. People who fall in love with family members are said to suffer from Genetic Sexual Attraction.

In your opinion would this be a case where incest could or should be made permissible?

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Personally I don’t believe incest should be allowed. While I am a big believer that what happens between consenting adults should not be a matter for the State (or anyone else, for that matter), this is a situation where I think an exception should be made. To start with, there is the issue of potential genetic defects in any children the incestuous couple may have; if some sort of illness or syndrome runs in the family, it is likely to show up much more often in cases where there is only one bloodline involved. The prevalence of haemophilia in the royal families of Europe around a century ago is testament to that fact. The other major reason I do not think incest should be legally permissible is that it could very plausibly lead to issues in the family home. Family relationships are by nature complex and allowing sex between family members could lead to a lot of conflict and confusion in the family unit. Furthermore, it is easy to imagine legal incest being used to facilitate sexual abuse – for example, by a parent threatening to kick out their 18-yearold child (who could, in theory, consent) if they were to refuse sex.

TEXT: RAVELLE MELISSEN / LLB 2

WOODY DICKINSON/ LLB 3

There are always more nuances to something than meets the eye. It makes it difficult to put something away as impermissible as there are always situations that blur those lines. Accordingly, I am a strong advocate of assessing situations on a case-to-case basis. The UCL study identifies situations that I would find very difficult to merely put away as behaviour that a person should be convicted for. It highlights the constant difficulty between moral standards and the law; something can be morally wrong, yet legal, and vice versa. In shaping my perspective on the topic, I would not be able to say whether I condone or condemn the act per se. However, it is quite clear that I think incestuous acts such as described above certainly need not be worth sending someone to prison for nor lead to someone being forced into getting therapy. It seems rather counterproductive to isolate these people from society through treating them as suffering from Genetic Sexual Attraction, leading to more societal disgust. The difficulty concerning morals is mixed in when we consider the genetic consequences. Nevertheless, respecting an adult’s right to have consensual sex with another adult makes it difficult for me to be able to draw the line concerning these genetic consequences.

From the context of first-degree (50% shared-genes) incestual relations, I argue that incestuous procreation should not be legally permitted. The biological consequences for individuals born to parents sharing similar genes, when balanced against the interests of those with Genetic Sexual Attraction, are far too extreme. Indeed, the effects of consanguineous mating on genetics has been researched for decades, with results pointing to the conclusion that offspring of such procreation are significantly more likely to have congenital malformations, lower cognitive abilities, physical disabilities, and mental illness. The child’s right to health, as laid down in Article 24 of the UN Convention on the Rights of the Child, obliges states to take all appropriate measures to fully implement this right. Given the aforementioned negative health consequences of incestuous relations the State should take all appropriate measures to prevent consanguineous procreation, with the most suitable legal measure being a prohibition of such activities. This solution, however, does not in entail the prohibition of all romantic associations between family members, in principle. Further, legal prohibitions must not necessarily involve the infliction of severe sanctions, nor would a finding of criminal responsibility be required; society has already accepted that certain instances of crime committed as result of mental illness should be subject to treatment as an alternative to punishment. I do not advocate for a harshly punitive system, but rather one that is rehabilitative. The solution to helping those who suffer from Genetic Sexual Attraction is not to incarcerate them for decades in a hopeless attempt of general deterrence, nor is it to give them freedom to procreate. Instead, I envisage a system in which Genetic Sexual Attraction is considered a real illness to be treated in a non-stigmatising environment helping those suffering from GSA to overcome such attractions. 39

TEXT: JACQUELYN VERALDI / LLB 2

EXCHANGE:

LJUBLJANA NATHALIE BIENFAIT / LLB 3

Hi everyone, I hail from my exchange semester at the University of Ljubljana! Just a disclaimer to begin with, the University of Ljubljana where I am now was actually a last resort choice after I was not able to go to Taiwan or Iceland (my first two choices!). So I guess my message is, wherever you end up, you’ll have an absolutely blast. Don’t be put off by the application procedure or competitive spots; go with the flow and you’ll always end up with great people and a great time!

The Country

I thought I’d include a little about the country because it’s possible that many readers will not know a lot about it (I certainly knew embarrassingly little before I came here…) Slovenia is part of former Yugoslavia, it has a rather fraught history which involves being taken over at various points by the Austro-Hungarians, the Italians/Germans and then the Serbs from which it declared independence in 1991. So that’s the boring stuff! The stuff that will be relevant for you if you decide to come here are that it’s a very very small country that manages to pack the Alps, Adriatic beaches and also a surprising amount of flat plain that looks amazingly like the Netherlands in places into about 20,000 square kilometres There are also very few people (about 2 million) so the capital city of Ljubljana is very similar in size to good old Groningen! One good thing about it being such a small country is that all Slovenes will speak rudimentary English or, at the very least, German.

Student Life

In a word: Erasmus. Think the most typical Erasmus party you’ve ever been to and you will find the epitome in Ljubljana. The only thing really different from Groningen is that Erasmus students are actually cool here; when there’s an ESN party then all the Slove-

nians are queuing up outside to check it out! Clubs are pretty commercial and drinks are surprisingly expensive. Luckily alcohol in supermarkets is about half the price of that in the Netherlands!

School

The University of Ljubljana is actually surprisingly good - it’s ranked in the top 3% of unis worldwide, so that’s cool! But luckily they take Erasmus very seriously at the faculty of Law, and they have special courses for exchange students which are purposefully easier than those for the normal Slovenians. This means it is a bit difficult to meet Slovenians, but there’s a nice buddy system that overcomes that to an extent. The courses that you can take in Ljubljana are on the whole interesting, but I would say it’s not the biggest reason to come here ;) I took a combination of easy courses (International Labour Law and European Human Rights) and rather more difficult ones (Diplomatic and Consular Law, Roman Law and Mergers, Acquisitions and Corporate Restructurings). The lecturers are pretty good with reasonable-good English and some of them are very very kind with their marking, but be sure to work out who is and isn’t a pushover! The exams are a mixture of oral and

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written and most courses have some sort of paper or presentation to boost your (already rather ridiculously good) grade!

Accommodation

I managed to apply pretty late for exchange which meant I missed out on the student dormitories, but I think that was definitely not a bad thing - I did the international student house experience in my first year at Groningen and I know I’m never going back! Instead I found the most amazing shared flat on Facebook and have never regretted it! We have the most awesome parties and the girls I live with are simply incredible. One tip I would give though is try and sort out housing as soon as possible because it does get stressful once terms starts and student housing is not highly abundant in the city.

Food

Being a former Socialist country does have its perks, and for students these come in the form of a thing called the “Studentski Boni” which translates to “student food coupons”. This is a system that includes a network of specific restaurants where you can get a four course meal (soup, main, salad, fruit) for about €3-4. Because of this, we never cook because groceries are about the same price as in the Netherlands. With meals this cheap we never even need to make lunch… I think I’ve got so used to eating so much food in the last 4 months I don’t know what I’ll do when I get back to Groningen

Exciting things to do

The best things to do in Slovenia are most definitely the hiking and looking at beautiful leaves - in the autumn all of our eyes were on beautyoverloadomgsopretty mode the whole time :D There are some really great easy walks to do from the city centre in the two big parks in Ljubljana and if you’re feeling more intrepid, you can hire a car and drive up to the Alps in the Triglav national park. Other things to do include travelling - going to other former Yugoslav countries and Italy, Austria and Hungary are all very reachable. Two things to say about travelling in Slovenia and the surrounding areas though: trains are bad; buses are very very good. So overall, it’s been a very good experience to get a glimpse of a different education system, and it’s also been a very welcome break from the pressures of the University of Groningen! I wish you the best of luck for your own exchange application and I would definitely recommend coming to central/eastern Europe

- Christian Garrard 41

THE KENYATTA CAS Is a Referral to the ASP an Empty Threat? Kenya’s Non-Cooperation with the ICC Brief History of the Kenyatta Case and Kenyan Government’s Non-Compliance The post-election violence in Kenya in 2007/ 08 had claimed over 1,000 lives, displaced over 350,000 people and over 900 acts of rape and sexual violence has been documented. On 31st March 2010, investigations into the alleged crimes against humanity committed in Kenya begun. Six Kenyans, including the current President & Deputy President of Kenya, Uhuru Kenyatta and William Ruto were summoned to appear before the ICC. However, charges against Mr Kenyatta was withdrawn in 2014 after the ICC Trial Chamber rejected an adjournment request. ICC Prosecutor, Fatou Bensouda, claimed that the Kenyan Government’s failure to cooperate with the Court resulted in the lack of evidence, which led to the collapse of the Kenyatta case. The Kenyan Government has been accused of interfering with witnesses and has refused to provide Prosecution with the requested evidence, including banks, foreign transactions, telephone and intelligence records.

Article 86 of the Rome Statute obligates State Parties to cooperate fully with the ICC. Kenya has ratified the Rome Statute on 15th March 2005. Therefore, it has an obligation to provide the Prosecution with the requested materials. One of the measures that the ICC can take in an event where a State Party refused to cooperate with the Court is to refer the matter to the Assembly of States Parties (ASP), as stated in Article 87(7) of the Statute. The Prosecution has been arguing that a referral should be the appropriate measure to deal with the Kenyan Government’s non-cooperation. However, on 3rd December 2014, the Trial Chamber rejected the Prosecution’s application for a referral in its first decision on Kenyan Government’s non-compliance. A referral was deemed to be inappropriate, even after the Kenyan Government was found to be non-compliant. The Trial Chamber justified its decision by highlighting the problematic conduct of the Prosecution. The Prosecution appealed this decision. On 19th August 2015, the Appeals Chamber reversed the

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SE TEXT BY: Gamaliel Kan - Queens Universty, Belfast

Trial Chamber’s decision as it found errors in the Trial Chamber’s assessment. It was found that the Trial Chamber had conflated the non-compliance proceedings against the Kenyan Government with the criminal proceedings against Mr Kenyatta. The Appeals Chamber issued its guidance and referred the issue back to the Trial Chamber to decide whether Kenya’s failure to cooperate had prevented the Court from exercising its functions under the Statute. And if so, whether a referral to the ASP is appropriate. On 19th September 2016, the Trial Chamber issued its second decision and held that the Kenyan Government’s refusal to cooperate had prevented the Court from exercising its functions under the Statute and that a referral to the ASP is the appropriate measure to address the issue of non-cooperation. The Trial Chamber’s second decision differs from its first decision as it: 1) Acknowledges the conflation of non-compliance proceedings with the criminal proceedings. The Prosecution’s conduct is irrelevant in deciding the appropriateness of a referral; 2) Acknowledges that a deadlock has been reached in obtaining cooperation, so further engagement with Kenyan Government would not be

‘beneficial’; and 3) Acknowledges that no third states, international or regional organisations are better placed than the ASP to deal with Kenya’s non-cooperation.

What is the Assembly of State Parties (ASP)?

The ASP is composed of representatives of State Parties to the Rome Statute and it acts as a management oversight and legislative body for the ICC. It has a Bureau consisting of a President, two Vice-President and 18 members elected by the Assembly. The ASP decides on various matters, like the election of judges, amendments to the Rome Statute and the performance of functions consistent with the Rome Statute or Rules of Procedure and Evidence. Every decision made by the ASP have to be reached by consensus. If this is not possible, decisions need to be taken by votes.

What can the ASP do in regards to Kenya’s non-compliance? Kenya is the third country to be referred to the ASP in 2016 after the Pre-Trial Chamber referred the Republic of Uganda and Djibouti to the ASP

and Security Council on their failure to surrender Sudanese President Omar Al Bashir. However, this decision is the first ICC finding of non-cooperation sent to the ASP on the failure of a State Party to provide assistance to the Prosecution’s investigations. Although a referral was deemed to be the appropriate enforcement measure to obtain Kenyan Government’s cooperation, the enforcement can be seen as a mere ‘paper tiger’. The ASP’s action is essentially political because it depends heavily on the participation of State Parties. Over 30 African States have ratified the Rome Statute, making Africa the most represented region within the ICC’s membership. All African State Parties to the Rome Statute are members of the African Union (AU). The AU has been a strong critic of the ICC and is unlikely to be helpful in securing Kenyan Government’s cooperation. The AU has been trying to terminate proceedings against African government officials, notably the proceedings against Omar Al-Bashir and William Ruto. At the 24th AU Summit on 23 – 26 January 2015, the AU adopted Agenda 2063 – blueprints for AU’s development. One of the agenda’s focus was to secure the withdrawal of cases against Omar Al-Bashir and William Ruto and to amend the Rome Statute to allow Government and

Head of States immunity. Given that about a third of the ICC’s member states are AU states, Kenya will have significant leverage and influence within the ASP as a referral would allow State Parties to the Rome Statute to dictate the ASP’s action. The Rome Statute also provides no guidance for the ASP in a situation of non-compliance. Nonetheless, the ASP has created the ‘Formal Response Procedure’ guideline with the specific intent to obtain cooperation from a non-cooperating member state and it can only be triggered by an ICC Chamber referral. However, the actions that the ASP can take under this procedure has no legal force and it can merely promote cooperation by engaging in dialogues with member states. The Procedure states that the President of the ASP may issue an Open Letter, reminding member states of their obligation; hold a bureau meeting where the state concerned can express its views and future plans; hold a public meeting with other State Parties, observers & civil society representatives to engage in open dialogue; produce a report on the outcomes of the public meeting; discuss the issue at the next plenary session of the ASP and appoint facilitators to draft a resolution containing recommendations. The procedure lacks any ‘tough’ enforcement and it relies excessively on states to act NEXUS SPRING 2017 |

in good faith. The fact that the Kenyan Government has refused to cooperate strongly suggests that it has an ulterior motive. So enforcing cooperation by merely promoting dialogue is unlikely to contribute anything meaningful in obtaining cooperation. The withdrawal of the Kenyatta case also makes this procedure less relevant. The Kenyan Government’s non-compliance proceedings highlight the ICC’s ineffective enforcement mechanism. The ICC is essentially a giant court without limbs because it has no police force of its own and it relies solely on the Member States to fulfil its mandate. Without a favourable political environment, the Court’s efficiency is severely undermined. However, other international tribunals like the ICTY had notable success in seeking states’ cooperation despite the absence of a police force of its own. None of the 161 ICTY’s indictee is at large. It is important to note that the ICC operates in an entirely different political environment than the ICTY. The ICTY had been benefiting immensely from the European Union (EU) consistent pressure on both Croatia and Serbia to fully cooperate with the tribunal in order for an EU accession. Because of the EU’s consistent pressure and its commitment towards international justice, indictees like the infamous Bosnian Serb military leader – Ratko Mladic was eventually arrested by the Serbian government and handed over to the ICTY. This is a huge contrast when we look at the AU’s atti-

tude and commitment towards international justice, most apparent when the AU adopted the Malabo Protocol in 2014. While the Protocol would strengthen the jurisdiction of the proposed African Court of Justice and Human Rights (ACJHR) to cover international crimes, it also grants immunity to sitting Head of States from prosecution. African States’ general commitment towards international justice and their dissatisfaction with the ICC has effectively disrupted the ICC’s work in Africa. This is most notable when one looks at the Al-Bashir case, where progress has been slow or non-existent at all. Despite the arrest warrant, President Al-Bashir was still able to travel freely and have visited countries like Chad, Uganda, India and China, where the Chinese President Xi Jinping addressed him as an ‘old friend of the Chinese people’. So although Kenya has been referred to the ASP, the ASP’s actions are unlikely to be effective unless external pressure from the AU is exerted upon Kenya, which is highly unlikely at the moment

Finally, we would like to thank all writers and readers for making the completion of this magazine possible. We make this magazine for you, therefore we rely on your feedback, collaboration, input and comments in order to keep producing magazines that you want to read. so, please be in touch! - The Nexus magazine editorial team

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