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Article 16 - Freedom from exploitation, violence and abuse
Background Documents | Article 16 Background
Seventh Session | Fifth Session | Fourth
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Seventh Session
Governments
Non-governmental organizations
Comments, proposals and amendments submitted electronically
Governments
Canada makes the following proposals for amendment to the facilitator's text on children:
Article 16(1)bis "STATES PARTIES SHALL PROTECT CHILDREN WITH DISABILITIES FROM STERILIZATION ON AN EQUAL BASIS WITH OTHERS"
or
"STATES PARTIES SHALL PROTECT CHILDREN WITH DISABILITIES FROM NON-THERAPEUTIC STERILIZATION"
Proposal to Art. 16 (bis)
Art. 16 (bis) Older Persons with Disabilities
1. State Parties shall undertake actions to ensure that Older Persons with Disabilities can grow older, with dignity and security empowering their own capacity, so that they can participate in their family and community lives, as individuals, with full rights, in equal standing with others.
2. State Parties undertake actions to:
a) Encourage that older persons with disabilities receive a just and dignified treatment, regardless of the presence of a particular disability.
b) Eliminate the differences and discrimination related to age, as far as the provisions of receiving health and rehabilitation services, so that older persons with disabilities can receive the specialized needed attention, in accordance with their disability, in the same manner as other younger persons with disabilities.
c) Generate appropriate conditions to reduce or eliminate the levels of disabilities related to age, promoting an autonomous and independent lifestyle of the older person.
d) Ensure that older persons with disabilities remain in their families and communities, encouraging strategies to promote self-care and the provision of technical assistance and capacity building to their caregivers, in order to guarantee the integration of the older person in their home, without prejudice to their disability.
e) Promote that older persons with disabilities, who remain productive and capable of working, can continue to do so, be it paid or volunteer work, based on their capabilities and without prejudice to age or to their disability
f) Facilitate and promote the establishment of self-help organizations for older persons with disabilities and to their caregivers.
Article 16
1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities both within and outside the home, from all forms of exploitation, violence and abuse.
2. States Parties shall also take all appropriate measures to prevent exploitation, violence and abuse by ensuring, inter alia, appropriate forms of assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of violence and abuse.
EU Proposal (1) and (2): Move paragraph (1) to become (1)bis, with the insertion of “also” between “shall” and “take”. Move the first part of paragraph (2) to become paragraph (1), deleting “also”, to read: “States Parties shall take all appropriate measures to prevent exploitation, violence and abuse”. Replace “States Parties…ensuring” in paragraph (2) with “States Parties shall ensure”.
The EU also proposes to remove the reference to whom support must be provided in paragraph (2) through the deletion of “for persons with disabilities and their families and caregivers”.
The EU proposal for the existing paragraphs (1) and (2) would therefore read as follows:
1. States Parties shall take all appropriate measures to prevent exploitation, violence and abuse.
1. bis States Parties shall also take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities both within and outside the home, from all forms of exploitation, violence and abuse.
2. States Parties shall ensure, inter alia, appropriate forms of assistance and support, including through the provision of information and education on how to avoid, recognize and report instances of violence and abuse.
3. In order to prevent the occurrence of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.
4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person.
5. States Parties shall put in place effective legislation and policies to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.
EU proposal 19 Jan 2006
1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to prevent all forms of exploitation, violence and abuse against persons with disabilities and to provide equal protection both within and outside the home.
2. States Parties shall ensure appropriate forms of assistance and support, including through the provision of information and education on how to avoid, recognize and report instances of violence and abuse.
EU Proposal (1) and (2): Move paragraph (1) to become (1)bis, with the insertion of “also” between “shall” and “take”. Move the first part of paragraph (2) to become paragraph (1), deleting “also”, to read: “States Parties shall take all appropriate measures to prevent exploitation, violence and abuse”. Replace “States Parties…ensuring” in paragraph (2) with “States Parties shall ensure”.
The EU also proposes to remove the reference to whom support must be provided in paragraph (2) through the deletion of “for persons with disabilities and their families and caregivers”.
The EU proposal for the existing paragraphs (1) and (2) would therefore read as follows:
3. States Parties shall take all appropriate measures to prevent exploitation, violence and abuse.
1. bis States Parties shall also take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities both within and outside the home, from all forms of exploitation, violence and abuse.
4. States Parties shall ensure, inter alia, appropriate forms of assistance and support, including through the provision of information and education on how to avoid, recognize and report instances of violence and abuse.
EU Position on “Women” and “Children” in response to the joint facilitator’s proposal, 31 January 2006
1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities both within and outside the home, from all forms of exploitation, violence and abuse including their gender-based manifestations.
2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender and child sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse.
3. In order to prevent to occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.
4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence and abuse, including through the provision of protection services that take into account gender and child specific needs. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person.
5. States Parties shall put in place effective legislation and policies including gender and child sensitive legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.
Proposals on articles relating to Women and Children with disabilities and other relevant articles
(iii) Regarding paragraph 1 of article 16, the text could be better worded by adding “specially women and girls with disabilities” before “both” and after “disabilities”. We may end the sentence with the word “abuse”.
Article 16
1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities both within and outside the home, from all forms of exploitation, violence and abuse.
2. States Parties shall also take all appropriate measures to prevent exploitation, violence and abuse by ensuring, inter alia, appropriate forms of assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of violence and abuse.
3. In order to prevent the occurrence of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.
4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person.
5. States Parties shall put in place effective legislation and policies to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.
Article 16
1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities both within and outside the home, from all forms of exploitation, violence and abuse, such as physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual and economic exploitation and abuse, abandonment and harassment.
2. States Parties shall also take all appropriate measures to prevent exploitation, violence and abuse by ensuring, inter alia, appropriate forms of assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse.
3. In order to prevent the occurrence of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.
4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person.
5. States Parties shall put in place effective legislation and policies to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.
Non-governmental organizations
INCLUSION INTERNATIONAL and INTERNATIONAL DISABILITY CAUCUS (IDC)
Article 16
Intervention
My name is Robert Martin, I’m speaking on behalf of the International Disability Caucus and Inclusion International. Our intervention will be in three parts.
As a person with an intellectual disability I have experienced violence and abuse in all its forms at the hands of others. As a child, I was slapped for refusing to call a staff person mum. Another time, I was given the wrong medication and it made me tired, I was beaten by my family because they thought I was being bad.
Many people with disabilities are sterilized against their will. Many people with disabilities are restrained against their will. These are acts of violence and abuse.
Some people with disabilities, because of their disability or gender are at higher risk of violence and abuse in all of its forms.
Our systems and services often perpetuate the cycle of violence and put people with disabilities in compromising situations.
For people with disabilities, acts of violence can become an accepted response. People have turned a blind eye to the violence we face. There is a different standard for people with disabilities than people without disabilities.
Too often my friends and I have been too scared to tell people about the violence because we thought it might get worse. Sometimes even when we said something we were not believed. Ignoring us and not doing anything is a form of abuse.
These abuses have lasting impact on our lives. It is always under the surface, it never goes away. We have to look at the reasons for the violence to help stop the cycle of violence. We need to understand what is creating it and what is lacking to prevent it.
We need to feel safe to disclose our abuse and nobody has the right to take it out on us. Procedures and safeguards need to be in place to protect us from reprisal.
There needs to be adequate supports for people with disabilities so their allegations can be properly investigated.
We need standards and training for professionals and families to understanding violence and abuse and provide supports to help us recover from abuse one way of breaking the cycle of violence.
IDC
Chairman’s Text as amended by the IDC
Article 16
FREEDOM FROM EXPLOITATION, VIOLENCE AND ABUSE
1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities both within and outside the home, from all forms of exploitation, violence (ADD: “threat of violence”) and abuse.
(JUSTIFICATION: IDC proposed to add “threat of violence” to the list of “exploitation, violence and abuse”. If accepted, this change would need to be made also in the other paragraph s where this list is used.)
(1bis) When implementing these measures States parties shall take into account that women and girls with disabilities are at greater risk of all forms of violence, neglect and exploitation as adopted in the Declaration on the Elimination of Violence against Women in private or public settings , particular on the basis of sex and disability.
Violence against women with disabilities shall be understood to encompass, but not be limited to physical, sexual and psychological violence occurring in the family, other private sphere and the general community.
Violence encompasses also forced sterilisation, abortion and traditional practices like genital mutilation.
(JUSTIFICATION: According UN sources women with disabilities are twice as much victims of gender based violence as women without disabilities. Furthermore they are subject to forced sterilisation and abortion. Therefore special references to their situation, including the various forms of gender based violence and gender-sensitive measures for victims of violence have to be included into this article.)
2. States Parties shall also take all appropriate measures to prevent exploitation (ADD “and all forms of”) violence and abuse by ensuring, inter alia, appropriate forms of (ADD “gender sensitive”) assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of violence and abuse (ADD “in a manner that empowers persons with disabilities and respects their independence from families and caregivers.”)
(JUSTIFICATION: Persons with disabilities need specific emphasis to ensure that they are protected from abuse.)
3. In order to prevent the occurrence of exploitation, (ADD “and all forms of) violence and abuse, States Parties shall (ADD “provide access to gender-sensitive remedies and) ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by (ADD “competent and”) independent authorities.
4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services (ADD: and accessible, acceptable and affordable shelters and services). Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person (ADD “and takes into account the specific needs of women with disabilities”).
5. States Parties shall put in place effective legislation (ADD “measures”) and policies to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.
6. (NEW 6 “States Parties shall ensure that child protection services are age and disability appropriate and adapted, accessible and available to both boys and girls with disabilities.”
(JUSTIFICATION: Despite the disproportionate vulnerability of children with disabilities to both sexual and physical violence, very few governments currently address the need to develop child protection services, which are accessible or appropriate for children with disabilities. For example, hotlines, and keep safe programmes are largely irrelevant to many children with disabilities. They are less likely to have access to information about their rights, and therefore lack the knowledge to know what they are entitled to challenge. And even if they have that knowledge, they are denied opportunities to report or challenge the abuse. The current draft of Article 16 recognises the importance of addressing the violence experienced by persons with disabilities, but, at present, makes no reference to children. Child protection services are, in most countries, developed in different departments from comparable services for adults. It is important to highlight in the text of this article the need for specific attention to be paid to introducing the necessary changes to existing child protection services in order to render them accessible and appropriate to children with disabilities. It is also important to stress that such services need to be available for both girls and boys and may have to be adapted differently to ensure accessibility to both.)
IDC Response to the facilitator’s text
Article 16 Freedom from exploitation, violence and abuse
Facilitator’s proposed text
New para 6
‘States Parties shall ensure that child protection services take account of the needs of girls and boys with disabilities, and are accessible and available to all children with disabilities’
The IDC supports the inclusion of a new para 6.
Rationale
Despite the disproportionate vulnerability of children with disabilities to both sexual and physical violence, very few governments currently address the need to develop child protection services which are accessible or appropriate for children with disabilities. For example, hotlines, and keep safe programmes are largely irrelevant to many children with disabilities. The media, through which information about their rights and where to go for help are disseminated, are largely inaccessible to many children with disabilities. In developing countries, they are usually not in school, so have no access to possible information or help through teachers. With no information about their rights, they lack knowledge of what they are entitled to challenge, or where to go for help.
The current draft of Article 16 recognises the importance of addressing the violence experienced by persons with disabilities, but, at present, makes no reference to children. Child protection services are, in most countries, developed in different departments from comparable services for adults. Adult services addressing violence will be addressed in the main criminal justice system and deal inadequately with children with disabilities. Violence against children is usually dealt with in children’s departments through specialised child protection legislation and rarely takes any account of the situation and needs of children with disabilities. Unless specific reference is made here to the necessity for these services to include children with disabilities, there is a real danger that they will fall through the gap between these two services and continue to be unprotected.
Response to the Facilitator’s Proposals on Women with Disabilities
from 28/30 January 2006
ARTICLE 16
FREEDOM FROM EXPLOITATION, VIOLANCE AND ABUSE
Facilitator:
1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities both within and outside the home, from all forms of exploitation, violence and abuse in particular that directed to girls and women including their gender based aspects.
Women’s IDC
1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities both (DELETE: within and outside the home) (ADD: in private and public settings) from all forms of exploitation, violence and abuse, (DELETE: in particular that directed to girls and women including their gender based aspects) (ADD: injury, abuse, neglect, negligent treatment and/or maltreatment, including their gender based manifestations). (ADD: Violence encompasses also forced sterilisation, abortion and female genital mutilation).
Rationale:
Compare also rationale to preamble. As stated there, forms of violence that specifically occur to women with disabilities have to be included in art. 16.
According UN sources women with disabilities are twice as much victims of gender based violence as women without disabilities. Furthermore, they are subject to forced sterilisation, abortion and genital mutilation.
Forced sterilization and abortion, as all forms of (medical) treatments that are perpetrated without a person’s consent, have to be defined as violence. Regarding the practice in many countries this has to be specifically stated.
Genital mutilation has to be included as it forms a bigger life risk to women and girls with disabilities.
Facilitator:
2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender and age sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse. States shall ensure that protection services are age, gender and disability sensitive.
Women’s IDC
2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender and age sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse. States shall ensure that protection (ADD: and prevention) services are (REPLACE age, gender and disability by disability, gender and age) sensitive (ADD: on an equal basis with others). .
Rationale:
We appreciate the input of the wording as suggested here and would like to emphasize in the last sentence the necessity to add prevention services. The addition of on ‘equal basis with others’ is necessary in order not to create specific protections services for women with disabilities. We further welcome the facilitators earlier redrafting in putting disability and gender before age as gender affects both women and men with disabilities at all stages of their life and disability is the rational behind this convention.
Facilitator:
3. In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.
4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender and age specific needs.
5. States Parties shall put in place effective gender and age sensitive legislation and policies to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.
Women’s IDC
Women’s IDC welcomes the proposals done by the Facilitator concerning 16 (3) to 16 (5).
Article 16
Revisions:
1. As for the purpose of Paragraph 3, insert “to remedy” in addition to “to prevent.”
2. In Paragraph 3, add “ in coordination with civil society” in front of “by independent authorities” as proposed in the facilitator’s text.
3. In Paragraph 5, add words “measures” and “follow-up arrangements” in addition to “identified, investigated and, where appropriate, prosecuted.”
Comments:
1. In terms of the purpose of the remedy, because there is no general remedy clause at this stage, it is at least necessary to provide a provision for remedy from abuse.
2. As to the cooperation with civil society: It is widely known that monitoring organizations are not able to play its role effectively without the cooperation of civil society. Such a system is promoted under Law Concerning the Prevention of Child Abuse in Japan.
3. As to the authority in remedy: If the independent organization does not have authority to undertake necessary measures and follow-up arrangements, it may not be able to play the expected role to remedy. Although Paragraph 4 provides recovery, the first step of recovery is the remedy from the incident. It is necessary to add terms so that the organization can undertake authoritative measures.
PEOPLE WITH DISABILITY AUSTRALIA (PWDA)
Report on National Consultations
There was general support for the article and no amendments or revisions to the Chair’s Text are proposed