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Main Index Part2 Chapter 7 » Part 1 Part 2 Part 3 Annexes |
UN Convention on the Rights of Persons with Disabilities |
Article 15, Freedom from torture or cruel, inhuman or degrading treatment or punishment
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OBJECTIVES
The background information and exercises contained in this chapter will enable participants to work towards the following objectives:
GETTING STARTED: THINKING ABOUT THE RIGHT TO BE FREE FROM TORTURE AND OTHER FORMS OF VIOLENCE
People with disabilities are particularly at risk for exposure to torture and other forms of cruel, inhuman, or degrading treatment or punishment. Likewise, people with disabilities are vulnerable to exploitation, violence, and abuse. Many violations of these kinds against people with disabilities go unnoticed given their frequent occurrences in institutionalized settings or other places which are isolated and hidden from public scrutiny, such as private and group homes, detention centers, and prisons. Like all human beings, people with disabilities have the right under human rights law to be free from all of forms of violence and abuse.
The enjoyment of the right of people with disabilities to be free from torture and other forms of violence is also related to the enjoyment of other human rights. For example, if a person with a disability is subjected to torture, his or her right to life may well be compromised and his or her right to health - both physical and mental - is surely at risk. Where children with disabilities are subjected to violence and abuse in educational settings, their right to health and their right to an education are violated. (For more on the rights of children with disabilities, see Chapter 15, p. 191). Subjecting people with disabilities in institutional settings to degrading conditions where they receive little or no care, have no means to fulfil their basic necessities of personal hygiene, or have no access to meaningful activities of interest violates a number of human rights, not only the right to be free from inhuman and degrading treatment, but also the right to an adequate standard of living, the right to recreation, and the right to health. These examples demonstrate that human rights are indivisible, interdependent, and interrelated.
Typical Forms of Violence and Abuse against People with Disabilities
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Human rights law draws some distinctions between torture on the one hand, and cruel, inhuman, or degrading treatment or punishment on the other. Where an action does not meet the precise definition of torture, it may be considered cruel, inhuman, or degrading treatment or punishment, depending on the form, severity and purpose of the conduct. Advocates need to understand the legal differences when they are making claims and reporting violations. It is also important to understand, however, that the lines between torture and cruel, inhuman, or degrading treatment or punishment may be difficult to draw in any given case. In part, it requires assessing the intensity and duration of pain and the particular circumstances of the individual. What some courts may agree amounts to torture in one case, may be characterized differently in another, albeit similar case.
Torture is one of the most serious violations of human rights. The right to be free from torture and other forms of physical and mental ill-treatment is absolute, and may not be suspended or restricted under any circumstances. Because of the risk of torture and other ill-treatment occurring during police custody, a number of procedural safeguards have been put in place in international human rights law documents that aim to substantially reduce the risk of torture occurring.
Torture is a frequent cause of disability, and when torture is inflicted on a person with a disability, it may lead to secondary disabilities or the onset of a serious medical condition. Interrogation techniques amounting to torture which are damaging to anyone, may be compounded for a person with certain disabilities or for those with medical conditions. In addition, the failure of an interrogator to recognize a person's disability could be mistaken for non-cooperation, as in the case of a prisoner who is unable to hear or process a question or communicate an answer as a result of a disability.
Factors Contributing to Violence against People with Disabilities
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Subjecting people with disabilities to harmful forms of treatment in the name of "fixing" or "curing" their disability has a long history. In many early cultures, disease was thought to be caused by an invasion of evil spirits, which healers attempted to exorcise with a variety of dangerous and potentially harmful techniques. The practices of displaying and photographing children with visible disabilities in hospital amphitheaters or subjecting people with disabilities to display in circuses with forced-labor conditions are degrading, as well as psychologically harmful. Many of these practices occur in a hospital or health-care setting and often against the most vulnerable populations of people with disabilities, such as people with psycho-social disabilities. Related practices occur in countries with under-developed health care systems.
The treatment of psycho-social illnesses especially illustrates such abusive practices that may amount to torture or cruel, inhuman, or degrading treatment or punishment. In many cultures persons with psycho-social illness are considered to be possessed by demons that must be driven out, often by violent means such as physical abuse, or even drilling into the skull to "release the demon." In the European middle ages, a standard "cure" for "madness" was isolation in darkness or public whipping. In the 18th century "enlightenment," people with psycho-social illness were often confined to public "madhouses" such as the infamous Bedlam Hospital in London, to which citizens could purchase tickets for the amusement of looking at the inmates.2
Such treatment of people with psycho-social disabilities is not confined to the past. Disability organizations have documented contemporary examples of such practices, which constitute some of the most extreme forms of torture and cruel, inhuman, and degrading treatment against people with disabilities. This includes the long-term use of restraints, especially under painful conditions; involuntary use of electroshock therapy (ECT) without anesthesia; and detention in dangerous facilities without any protection from violence or access to medical care for victims of violence. The use of brain-damaging surgeries without consent, such as lobotomy (brain surgery designed to numb the emotions), is still practiced, often performed on women deemed to be "too emotional." The use of harmful medications designed to "subdue" people with psycho-social disabilities is another example of coercive treatments imposed on people that violate human rights. Mental Disability Rights International (MDRI) has exposed instances of abuse where a particular psychiatric "treatment" is in fact being used as a punishment and has argued persuasively that such conduct violates the torture prohibition, as in the case of using unmodified ECT without anesthesia.3
Physical and mental abuses and gross neglect endangering the lives of people with disabilities housed in institutional facilities are widespread. Reports issued by MDRI on conditions for people with mental disabilities warehoused in dismal and dangerous institutions detail unhygienic conditions of detention, excessive use of physical restraints, lack of adequate food, water, clothing and medical care, and other life-threatening conditions. MDRI has also documented instances of complete sensory deprivation in barren, long-term isolation cells in institutions.4 These conditions are examples of violations that may fall under torture or cruel, inhuman, or degrading treatment or punishment, depending on the circumstances.
Addressing Human Rights Abuse in Institutional Settings
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Medical and scientific experimentation without free and informed consent is a human rights violation to which people with disabilities continue to be subjected. Some of the worst and best- known examples of such abuse occurred during the Holocaust when people with disabilities were subjected to horrific medical experiments. At the Nuremberg Trials, Nazi doctors were ultimately tried and convicted of war crimes and crimes against humanity for their participation in such experiments. The prohibition of medical and scientific experimentation without informed consent is highly relevant in the context of certain diseases that cause disabling conditions and for which medical science offers no cure, but are the subject of medical research and experimentation. A situation often faced by persons with psycho-social disabilities is the provision of an untested regimen of various drugs or therapies that in their combination are unproven - such a practice must surely constitute "experimentation" as opposed to "treatment" and would therefore violate human rights law unless free and full informed consent is given.
People with disabilities are vulnerable to other forms of violence, abuse, and exploitation. Children with disabilities, particularly those living in large institutions, are exposed to many forms of violence which cause serious risks to their physical and mental integrity. Sexual abuse and exploitation is likewise a violation that people with disabilities - men and women, girls and boys - experience. Persons with disabilities living in institutions may be particularly vulnerable to such abuse and groups such as Mental Disability Rights International (MDRI) has documented sexual violence in such contexts.5 Economic exploitation, in which children and adults with disabilities are frequently subjected to forced-labor, working for little or no pay in often dangerous working conditions, also presents serious threats to the health and physical, mental, and social development of people with disabilities. Cultural practices, such as female genital mutilation and early marriage, impact women and girls with disabilities and may also result in physical and psycho-social disability.
Exercise 6.1: The Effects of Violence on Persons with Disabilities |
Objective: | To understand the effects of violence on different populations of people with disabilities. |
Time: | 30 minutes |
Materials: | Materials: Chart paper and markers or blackboard and chalk |
1. Introduce:
Explain that people with disabilities are not at risk of violence and abuse because of their
disabilities, but because of the actions of abusing individuals in society. Violence and abuse
may affect different populations of persons with disabilities differently. These differences must
be taken into consideration when designing violence and abuse prevention programs.
2. Brainstorm:
Divide participants into small groups and ask them to:
3. Report:
Ask a spokesperson from each group to report their findings. List these on a chart like that
below. When the first two columns are complete, ask participants to identify challenges to
addressing violence and abuse against each different group. Write the responses in the third
column.
4. Analyze:
Ask participants to consider the following based on their initial discussion:
Group of Disabled People |
Kinds of Violence |
Challenges to Addressing this Violence |
WHAT DOES HUMAN RIGHTS LAW SAY ABOUT FREEDOM FROM TORTURE AND OTHER FORMS OF VIOLENCE?
The prohibition against torture is a core principle in human rights law; the right to be free from torture may not be suspended or limited under any circumstances. Reflected in the Universal Declaration of Human Rights (UDHR)6 and the International Covenant on Civil and Political Rights (ICCPR),7 the right to be free from torture and cruel, inhuman, or degrading treatment or punishment also finds expression in many other international documents, including a specialized treaty on the subject, the Convention against Torture (CAT).8 Specialized international human rights conventions have also sought to address forms of violence beyond torture and cruel, inhuman, and degrading treatment or punishment. For example, the Convention on the Rights of the Child (CRC)9 protects the right of the child to be free from torture and also specifically protects the right of the child to be free from "all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse" and further recognize State obligations regarding sexual exploitation and abuse, economic exploitation, and promoting recovery of child victims.
Defining various categories of violence and abuse can be challenging and the lines between different forms of conduct are often not easily drawn. CAT provides detailed standards for the effective prohibition against torture and other ill-treatment, including guarantees of survivor assistance and legal redress for those who have experienced torture or other forms of prohibited treatment or punishment. Article 1 of CAT defines torture as "any act committed by a public official or other person acting in an official capacity or at the instigation of or with the consent of such a person - by which severe physical or mental pain or suffering is intentionally inflicted on a person for a specific purpose, such as extortion of information or confession, punishment, intimidation or discrimination." Actions that do not meet this definition in all its elements may fall under the category of cruel, inhuman or degrading treatment or punishment, depending on the type of conduct in question. Human rights tribunals have not offered clear standards by which to evaluate when conduct is torture, or when it falls under another prohibited category.
The Convention on the Rights of Persons with Disabilities (CRPD) addresses violence
and abuse in two specific provisions: Articles 15 (Freedom from torture or cruel, inhuman, or
degrading treatment or punishment) and 16 (Freedom from exploitation, violence, and
abuse) which recognize:
In sum, the right to be free from torture or other forms of abuse requires States to respect, protect, and fulfill these rights for people with disabilities. The obligation to "respect" means, among other things, that States must refrain from using torture in questioning prisoners with disabilities and refrain from subjecting people with disabilities in prison or otherwise detained or living in institutional settings from any form of abuse. States must also prohibit the subjection of people with disabilities to medical or scientific experimentation unless they are in a position to provide full and informed consent without any coercion or undue influence whatsoever. The obligation to "protect" means that States must protect people with disabilities against abuses by State and non-State actors, including inhuman or degrading conditions in both public and private institutional settings. The obligation to "fulfill" means that States must take active measures to ensure protection, such as training police officers in acceptable methods of obtaining information and in how to accommodate prisoners with disabilities or monitoring facilities where people with disabilities receive services. Teacher training is required to ensure that children with disabilities are not subjected to forms of punishment that constitute violence and that they are protected against bullying and abuse by classmates.
Exercise 6.2: What Rights to Freedom from Torture and Other Forms of Abuse does the CRPD Affirm? |
Objective: | To review and understand CRPD Articles 15 and 16 |
Time: | 30 minutes |
Materials: | Materials: Chart paper and markers or blackboard and chalk |
1. Review:
Assign different parts of Articles 15 and 16 to small groups of participants (You may wish to
divide Article 16 into four parts). Ask them to work together to paraphrase their section in
common language and give some examples of how that right could be enjoyed and make a
difference for people with disabilities.
2. Paraphrase/Give examples:
Read each section of Articles 15 and 16 aloud and ask the assigned group to give its
paraphrase. Discuss the meaning of the section until everyone can agree on a paraphrase.
Write the final paraphrase of Articles 15 and 16 on chart paper and post. After each section
ask for examples of how that right could be enjoyed and make a difference for people with
disabilities.
3. Discuss:
PHYSICAL AND MENTAL INTEGRITY IN PRISON SETTINGS
Human rights law guarantees the right of all people deprived of their liberty to be treated with humanity and with respect for their inherent dignity. Article 10 of the International Covenant on Civil and Political Rights (ICCPR) states that: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."10 The UN Human Rights Committee, which monitors implementation of the ICCPR, has stressed in General Comment 21 that prisoners should not be "subjected to any hardship or constraint other than that resulting from the deprivation of their liberty."11 Little attention has been paid by the human rights community to the right of prisoners with disabilities. Accommodations must be provided for persons with disabilities while in prison to ensure respect for their human rights and dignity.
The prohibition against torture and abusive treatment applies to prison authorities and requires protection from violence by other prisoners. It also requires protection from prison conditions that amount to cruel, inhuman, or degrading treatment or punishment. International human rights instruments developed within the United Nations provide guidance as to how governments may comply with their international legal obligations in relation to prisoner rights. In some instances, specific guidance on the rights of prisoners with disabilities and detained persons with disabilities is also indicated. These documents include the United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules)12 adopted by the Economic and Social Council in 1957; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,13 adopted by the General Assembly in 1988; and the Basic Principles for the Treatment of Prisoners,14 adopted by the General Assembly in 1990. While these instruments are not treaties, they provide authoritative guidance on the interpretation of binding human rights law.
It should also be noted that a separate but related body of law applies during times of armed conflict and is intended to provide protection to civilians. This body of law, referred to as International Humanitarian Law, specifies the rights of civilians and those who are not combatants. These laws are set forth in the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War.15
Human rights advocates have been successful in exposing and in many instances correcting human rights violations in prisons. Human Rights Watch has documented serious abuses against prisoners with psycho-social disabilities in US prisons.16 More recently, advocates have focused more specifically on accommodating the needs of prisoners with disabilities and some prison authorities have responded with their own initiatives. For example, the Northern Ireland Prison Service, in addition to appointing a human rights advisor, has adopted a disability action plan and has taken action to improve cell accessibility, modify educational programs to accommodate prisoners with intellectual and learning disabilities, and addressed communication needs of deaf and hard of hearing prisoners.17
Exercise 6.3: Understanding the Rights of People with Disabilities in Prison or Detention |
Objective: | To understand the particular needs of disabled people in prision or detention |
Time: | 30 minutes |
Materials: | Chart paper and markers or blackboard and chalk Optional: Copies of list generated in Exercise 6.1. |
1. Introduce:
Explain that disabled prisoners, like all persons with disabilities, require accommodation for their
disability. Review case summaries from European Court of Human Rights involving prisoners
with disabilities to provide some context. (See text box on next page). Reintroduce the list of
disability populations created in Exercise 6.1 or create a new list of different groups of
people with disabilities (e.g., women, children and teenagers, men, elders, refugees) and kinds of
disability (e.g., visual, mobility, hearing, psycho-social).
2. Discuss:
Divide participants into small groups and ask each to use the list as a guide to -
3. Analyze:
Ask participants to consider the following based on their initial discussion:
European Court of Human Rights Finds
United Kingdom Violated Disabled Prisoner's Rights In Keenan v. the United Kingdom (2001) the European Court of Human Rights held, among other things, that the treatment of a prisoner with a psycho-social disability was inhuman and degrading treatment and punishment in violation of Article 3. The prisoner was found dead in his cell after he hung himself while in solitary confinement. The Court found deficiencies in his medical care and monitoring of his condition. The Court also found that his placement in segregation and the addition of 28 days to his sentence just nine days before his expected release may have threatened his physical and moral resistance, and in these circumstances was "not compatible with the standard of treatment required in respect of a mentally ill person." In Price v. United Kingdom (2001), the European Court of Human Rights found that the United Kingdom violated the rights of a woman with a disability who had been held in detention. The applicant was a woman who was a wheelchair user and did not have the use of her limbs. She was sent to prison for one week and alleged that while in custody she was forced to sleep in her wheelchair, could not reach emergency buttons and light switches, and was unable to use the toilet. She was lifted onto a toilet by a female prison officer but was left there for over three hours until she agreed to allow a male nursing officer to assist her. The Court held that these conditions amounted to "degrading treatment contrary to Article 3."18 |
International Standards for Persons in Prison or Detention
Basic Principles for the Treatment of Prisoners
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Standard Minimum Rules
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SEXUAL VIOLENCE, EXPLOITATION, AND ABUSE
Studies indicate that sexual exploitation and abuse is a widespread phenomenon among persons with disabilities, particularly women and girls, although disabled men and boys also experience sexual violence, exploitation, and abuse. Studies indicate that nearly 50% of women with disabilities report some form of sexual abuse during their childhood and some 30% of disabled women report being subjected to sexual abuse in their adult lives.20 Most instances of abuse go unreported and, therefore, remain unaddressed. Very often, abuse takes place in a private home dwelling or in an institution where it is sometimes imagined that people with disabilities will be free from abuse.
Sexual violence, exploitation and abuse have long-lasting harmful effects on persons with disabilities. Where such abuses occur in isolated settings, the chances of accessing the assistance needed for recovery may be slim. Moreover, such traumatic experiences may increase disability-related functional limitations or create secondary disabilities. Programs and services that do address sexual violence and abuse in the community, particularly those targeting women and girls, very often do not reach out to disabled persons. Disability advocates are working to address these gaps and to ensure that programs and services are inclusive and accommodating to all. Violence prevention advocacy is an important component of ensuring the right of persons with disabilities to be free from violence and to lead self-determined lives.
Exercise 6.4: Making a Commitment to Promote Freedom from Torture and other Forms of Violence and Abuse |
USEFUL RESOURCES ON TORTURE AND OTHER FORMS OF ABUSE AGAINST PERSONS WITH DISABILITIES
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1 |
Rousso, Harilyn. Girls and Women with Disabilities: An International Overview and Summary
of Research. (Disabilities Unlimited Consulting Services, 2001); Saxton, Marsha. The Impact of Violence
on People with Disabilities. (World Institute on Disability, 2007).
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2 |
Harris, James C. Intellectual Disability: Understanding its Causes, Classification, Evaluation and Treatment
(Oxford: 2005), pp. 14-16; Albrecht, Gary L. et al., eds., Handbook of Disability Studies
(Sage Publications: 2001), pp. 15-18.
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3 |
"Behind Closed Doors: Human Rights Abuses in the Psychiatraic Facilities,Orphanages, and Rehabilita
tion Centers of Turkey." Mental Disability Rights International (MDRI). 2005.
http://www.mdri.org/turkey.html
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4 |
"Ruined Lives: Segregated from Society in Argentina's Psychiatric Asylums." 2007. Mental Disability
Rights International (MDRI) and the Center for Legal and Social Studies (CELS).
http://www.mdri.org/PDFs/reports/MDRI.ARG.ENG.NEW.pdf
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5 |
"Not on the Agenda: Human Rights of People with Mental Disabilities in Kosovo." 2002. Mental Disability
Rights International (MDRI). http://www.mdri.org/kosovo.html
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6 | See http://www.unhchr.ch/udhr/lang/eng.htm |
7 | See http://hrlibrary.law.umn.edu/instree/b3ccpr.htm |
8 | See http://www.unhchr.ch/html/menu3/b/h_cat39.htm |
9 | See http://hrlibrary.law.umn.edu/instree/k2crc.htm |
10 | See http://hrlibrary.law.umn.edu/instree/b3ccpr.htm |
11 | See http://hrlibrary.law.umn.edu/gencomm/hrcom21.htm |
12 | See http://www.unhchr.ch/html/menu3/b/h_comp34.htm |
13 | See http://www.unhchr.ch/html/menu3/b/h_comp36.htm |
14 | See http://www.unhchr.ch/html/menu3/b/h_comp35.htm |
15 | See http://www.unhchr.ch/html/menu3/b/92.htm |
16 |
"Ill Equipped: U.S. Prisons and Offenders with Mental Illness." 2003. Human Rights Watch.
http://www.hrw.org/reports/2003/usa1003
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17 |
"Northern Ireland Prison Service Disability Action Plan: July 2007-March 2010." Northern Ireland Office.
http://www.nio.gov.uk/nio_disability_action_plan_july_2007_-_march_2010.pdf
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18 |
"European Court of Human Rights - mental disability cases." Mental Disability Advocacy Center.
http://www.mdac.info/
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19 |
"Ill Equipped: U.S. Prisons and Offenders with Mental Illness." 2003. Human Rights Watch.
http://www.hrw.org/reports/2003/usa1003
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20 |
"The Impact of Violence on People with Disabilities." 2006. World Institute on Disability
(Marsha Saxton).
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