Deviants or Consenting Adults: A Human Rights Approach to Defining and Controlling Deviant Behavior

Abstract

This article examines the concept of deviance within a human rights perspective. The current debate over the need for consent, and the difficulty inherent in attempting to reach a consensus regarding definitions of deviance, are discussed. The positivist and subjectivist-constructionist approaches to defining deviance are outlined and critiqued. It is concluded that both of these models are inadequate for defining deviance and that a more objective approach is required which reflects society’s interests, while also protecting individuals from the tyranny of the majority. This conclusion leads to the development of a new model of deviance which incorporates human rights into the method for defining deviance. This model rests on the argument that there is a crucial difference between behaviors which are undesirable and those which are unacceptable. It is further argued that only unacceptable behaviors should be prohibited and that behaviors which are merely undesirable should be tolerated and regulated. A model is elaborated in which five criteria are posited as a methodology for determining whether particular behavior is deviant and/or whether it should be controlled through criminal sanctions.