Notes Marianne Schulze

Article 16 CRPD: Exploitation, Violence & Abuse  

The ethos of “taking care” of persons with disabilities is firmly established in societies; so much so that we tend to believe that ensuring that they are “well taken care of” also means that they are safe. That is an illusion and a dangerous one. In fact the likelihood of a person with disabilities to fall victim to exploitation, violence and abuse is not just as high as for persons without disabilities. It is – shockingly – significantly higher. How much? We have, as in many other areas concerning the rights and lives of persons with disabilities, a scarcity of data. Conservative estimates suggest that the prevalence of exploitation, violence and abuse among persons with disabilities is five times higher compared to violence in societies at large. There is overall a fierce urgency in addressing the causes of exploitation, violence and abuse and taking swift measures to prevent any form of violating the physical and mental integrity of persons with disabilities.

Article 16 of the Convention on the Rights of Persons with Disabilities enshrines States’ obligation to protect persons with disabilities “from all forms of exploitation, violence and abuse, including their gender-based aspects.” In addition to covering both private settings as well as public ones, it provides coverage for all facilities and programmes designed to serve persons with disabilities. A monitoring requirement is included in the provision. Finally, a set of measures for victims of exploitation, violence and abuse is foreseen. Set among the provisions on justice, freedom of liberty, prohibition of torture and the right to integrity, Article 16 is broad in scope and wide in its practical implications.

What we are overlooking: What is exploitation, violence & abuse?

Trying to break down what exploitation, violence and abuse may mean, six categories can be described:

1.      Physical violence

2.      Sexual abuse & exploitation

3.      Psychological threats and harm

4.      Interventions which violate the integrity of the person

5.      Financial abuse

6.      Neglect, abandonment and deprivation

Breaking these abstract terms down further, the following examples, which clearly only reflect a fraction of the scope of the terms as well as the practical implications, may be helpful to illustrate what exploitation, violence and abuse mean in practice:

·         Too high doses of medication or deprivation thereof

·         Ruining or taking away assistive devices; or threat to do so

·         Depriving of care and assistance, refusal to conduct care as instructed

·         Seeking consent to procedures under duress (abuse of a dependent relationship)

·         Creating undesired and unwarranted control(s) over a person’s life

·         Criticism for being ungrateful or not sufficiently grateful for support provided

·         Undesired touching, misogyny

·         Sexual violence, rape

Some of these acts as well as omissions may be predominantly found in institutional settings but there are many forms of exploitation, violence and abuse that occur in private settings, too. Note that an institution is not defined by its size but by its characteristics as well as the degree of control each individual has over her/his daily lives and day-to-day decisions. Importantly, the attitude and qualifications of the providers and staff have to be weighed as much as the actual access to community life – outside the institution and the enjoyment of all rights based on personal preferences, supported by adequate assistance. “Good order” being praised above all, the rigidity, which frequently comes with larger institutions: they are key to increasing the likelihood of exploitation, violence and abuse.

Domestic violence studies highlight the prevalence of exploitation, violence and abuse in private settings. Family and friends are often relied on for largely informal support to persons with disabilities. This can work very well but “many disabled children and adults find themselves more informally “contained” or managed within their families.” Shortage of resources is prevalent in such settings and various forms of stress are likely to occur and spill into the relationship and over personal borders.

Hate Speech is a form of violence that occurs frequently and is completely underreported. Its prevalence has a profound impact on the ability to live independently: as the European Network on Independent Living, ENIL, notes: “  “If a disabled person is continually harassed or is a victim of hate crime, then this will restrict their opportunities to participate in aspects of daily life: to go to their local supermarket, to use public transport, to leave their apartment.”

Two other aspects of exploitation, violence and abuse should briefly be noted. The practice and the discussion around pre-natal diagnostics is perceived as not only hurtful but as a threat by many persons with disabilities. It is seen as contributing to a mind-set that limits persons with disabilities’ opportunities and supports the justification of discriminatory practices. 

A potential grey-zone that needs to be noted and carefully discussed is that of persons with challenging behavior: with increasing frequency, the behavior of persons who are too disobedient for established institutions, more often than not it is also labeled as impairment. Both the medicalization as well as the criminalization of behavior is profoundly problematic.

There is a lack of data on the level of exploitation, violence and abuse against persons with disabilities. A significant factor are the many hurdles that persons with disabilities face in reporting such incidents. Be it a lack of possibilities to report the incident due to the dependence on the perpetrator, be it the actual or perceived lack of credibility given to a person with disabilities wishing to report a crime.

Factors, which add to the increased risk of persons with disabilities falling victim to violence.

Persons with disabilities are frequently perceived as “different” and therefore marginalized. In what has been termed the medical model, persons with disabilities are largely framed through health related parameters and perceived shortcomings and “deficits”, respectively. This view of persons with disabilities is often reinforced through a welfarist prism that largely builds on pity and frequently seeks alms.

The tendency to medicalize every aspect of an individual’s life, minimizing or ignoring symptoms or overzealous hygiene point to forms of exploitation, violence and abuse that are both prevalent for persons with disabilities as well as reinforcing on account of the – perceived – impairment.

Among the many factors contributing to the higher likelihood of persons with disabilities being subjected to exploitation, violence and abuse, are

·         Public perception and hostility or indifference

·         Perception as “easy targets”

·         Lack of understanding of “disability”

·         Ignorance and poor training of staff, particularly for persons with complex needs or challenging behaviours

·         Lack of accountability

·         Lack of knowledge and inadequate access to discrimination prevention and accountability for victims.

The likelihood of sexual exploitation, violence and abuse is reported as significantly higher, particularly for persons with intellectual impairments residing in institutions. Sexual violence and abuse are clearly linked to a perception of persons with disabilities as being non-sexual, starting in childhood. Tied to poor education and lack of reasonable accommodation, there’s a lack of – particularly bodily – self-awareness and understanding of basic sexual facts.

Prevention of exploitation, violence & abuse

There is a lot of work to be done to ensure that exploitation, violence and abuse against persons with disabilities starts to make a difference. Acknowledging its likelihood is a start, ensuring that the specific nature in cases of persons with disabilities is understood is vital. Action Plans on violence have to mainstream aspects related to persons with disabilities and data collection needs to be refined and expanded. Per the Convention’s obligations, training and awareness raising are paramount – for persons with disabilities themselves as much as for those who care for them and those likely to interact with them after a violation – particularly medical staff, police and members of the judiciary.

Participation

Frequently, the capacity of persons with disabilities to contribute adequately to discussions is questioned and consequently undermined. Therefore, it is paramount that the capacity of persons with disabilities is recognized, strengthened and opportunities are provided to have persons with disabilities speak for themselves on their own terms:

Persons with disabilities’ capacity to make their own decisions (Art 3 (a) CRPD) should not only be recognized but as the CRPD emphasizes also have the right to act their legal capacity. Support measures vary greatly but as the CRPD emphasizes, States have an obligation to ensure the provision of reasonable accommodation (Art 5 (3) CRPD).

Circumventing the consent of persons with disabilities is a frequent practice. Ensuring that persons with disabilities give their free and informed consent to all actions that may potentially have an impact on their physical and/or mental integrity is a human rights obligation.

Gender Equality  & Multiple Discrimination

The increased likelihood of women and girls with disabilities becoming victims of exploitation, violence and abuse necessitates a specific focus and targeted interventions.

Strengthening the independence of women and girls with disabilities, enabling them and empowering them are the most promising and sustainable ways to increase the prevention from exploitation, violence and abuse. Accordingly, access to mainstream quality education and employment as well as independent living opportunities should be seen as a parallel and equally important goal in violence prevention efforts.

The combination of various characteristics, the CRPD lists  „race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status” increases the risk of experiencing exploitation, violence and abuse.

As respondents to the Fundamental Rights Agency’s Report on Children with Disabilities noted, it is crucial to be aware of and recognise the “multiple layers of risk”. A holistic approach to prevention should place particular emphasis on the exclusion and marginalization due to socio-economic factors. As the Report notes that poverty is “one of the major factors increasing children with disabilities’ vulnerability to violence.”

Education & training

Education is key to self-awareness, to the ability to know ones boundaries and set them for others in manifold ways. Education thus plays an important role in enabling persons with disabilities to protect themselves against potential exploitation, violence and abuse. Furthermore, education is also crucial for persons with disabilities in attaining knowledge of sexual and reproductive health.

The role of education in combating exploitation, violence and abuse, including bullying, harassment and hate crimes, cannot be overstated for both persons with disabilities as well as those entrusted with supporting and assisting them:

What Article 16 covers otherwise: monitoring & recovery

 

Article 16 foresees an institutional measure to prevent exploitation, violence and abuse: monitoring by an independent mechanism. The specifics thereof are unclear, the debate on the relationship between this entity and the monitoring mechanism in Article 33 CRPD is underway, as are the discussions on a possible overlap with the National Preventive Mechanism foreseen in the Optional Protocol to the United Nations Convention Against Torture. That said: it is an obligation that becomes effective immediately and one that should play a vital role in preventing exploitation, violence and abuse.

Finally, note should be taken that holistic measures are foreseen for those persons who become victim of exploitation, violence and abuse aimed at their recovery, compensation and reintegration.