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Article 17 - Freedom from exploitation, violence and abuse
Background Documents | Article 17 Background
Seventh Session | Fifth Session | Fourth
Session | Third Session
Working Group | References
Governments
European Union
India
Kenya
Mexico
UN System organizations
National Human Rights Institutions
National Human Rights Institutions
Ontario Human Rights Commission
Non-governmental organizations
Australian NGOs
Bizchut
European Disability Forum
International Save the Children Alliance
Japan Disability Forum
Landmine Survivors Network
Physical Disability Council of Australia
World Blind Union
World Network of Users and Survivors of Psychiatry
Comments, proposals and amendments submitted electronically
Governments
EUROPEAN
UNION
Draft Article 12
FREEDOM FROM VIOLENCE AND ABUSE
1. States Parties recognise that persons with disabilities are at greater
risk, both within and outside the home, of violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual exploitation
and abuse. States Parties shall, therefore, 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 violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse.
EU Proposal: Move the first sentence to the Preamble. Delete the
word “therefore” from the second sentence.
2. Such measures should prohibit, and protect persons with disabilities
from, forced interventions or forced institutionalisation aimed at correcting,
improving, or alleviating any actual or perceived impairment, and abduction.
EU Proposal: Replace by: “States shall take the necessary measures
to ensure that medical and related interventions, including corrective surgery,
are not undertaken without the free and informed consent of the person concerned”
(Moved and reworded from Article 21(k))
3. States Parties shall also take all appropriate measures to prevent violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse, by ensuring, inter alia, support
for persons with disabilities and their families, including the provision
of information.
EU Proposal: The bulk of paragraph 3 repeats the content of paragraph 1
of the Article. The EU recommends the deletion of existing paragraph 3,
except for the concept of “provision of information”.
The EU suggests the following new paragraph 3:“Such measures shall include
the provision of appropriate information to persons with disabilities and
their families”.
EU Proposal: EU suggests the inclusion of new paragraph 3 bis.
i. States Parties shall accept the principle that forced intervention of
persons with disabilities is illegal, save in exceptional circumstances
in accordance with the procedures established by law and with the application
of appropriate legal safeguards.
ii. The law shall provide that in any case of forced intervention of persons
with disabilities, the best interests of the person concerned will be fully
taken into account.
4. States Parties shall ensure that all facilities and programmes, both
public and private, where persons with disabilities are placed together,
separate from others, are effectively monitored to prevent the occurrence
of violence, injury or abuse, neglect or negligent treatment, maltreatment
or exploitation, including sexual exploitation and abuse.
5. Where persons with disabilities are the victim of any form of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse, States Parties shall take all appropriate
measures to promote their physical and psychological recovery and social
reintegration.
6. States Parties shall ensure the identification, reporting, referral,
investigation, treatment and follow-up of instances of violence and abuse,
and the provision, as appropriate, of protection services and, as appropriate,
judicial involvement.
EU proposal: Replace "treatment" with "prosecution".
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INDIA
Articles 11 and 12 (merged)
Freedom from Torture, Degrading Treatment, Violence and Abuse
1. States Parties shall take all effective legislative, administrative,
judicial, or other appropriate measures to prevent persons with disabilities
from being subjected to torture or cruel, inhuman or degrading treatment
or punishment and violence and abuse.
2. In particular, States Parties shall prohibit, and protect persons with
disabilities from medical or scientific experimentation without the free
and informed consent of the person concerned, and shall protect persons
with disabilities from forced interventions or forced institutionalization
aimed at correcting, improving or alleviating any actual or perceived impairment.
In instances of reduced or temporarily reduced capacity to give this consent,
appropriate objective, neutral legal procedure and safeguards should be
provided in the best interests of persons with disabilities and legal guardians/surrogate’s
consent should be obtained where third party interests are concerned/harmed.
3. States Parties recognize that persons with disabilities are at greater
risk, both within and outside the home, of violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual exploitation
and abuse. States Parties shall therefore take all appropriate legislative,
administrative, social, educational and other measures to protect persons
from disabilities, both within and outside the home, from all forms of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse.
4. States Parties shall also take all appropriate measures to prevent violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation
and abuse, especially against children and women with disabilities, by taking
measures, inter alia, for providing support for persons with disabilities
and their families, including the provision of information and other appropriate
forms of assistance and support.
In such cases, States Parties shall take all appropriate measures to promote
their physical and psychological recovery and reintegration into communities.
5. States Parties shall ensure that all facilities and programmes, both
public and private, where persons with disabilities are placed together,
separate from others, are effectively monitored to prevent the occurrence
of violence, injury or abuse, neglect or negligent treatment, maltreatment
or exploitation, including sexual exploitation and abuse.
6. States parties shall endeavour to ensure the identification, reporting,
referral, investigation, treatment and follow-up of instances of violence
and abuse. The provision of protection services, and where necessary, access
to judicial interventions should also be made available.
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KENYA
Draft Article 12
FREEDOM FROM VIOLENCE AND ABUSE
Insert the phrase ‘sexual harassment’ in 1 between the words ‘including’
and ‘sexual’ so that it reads:
1. States Parties recognise that persons with disabilities are at greater
risk, both within and outside the home, of violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual harassment,
sexual exploitation and abuse. States Parties shall, therefore, 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 violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual exploitation and abuse.
Insert the following new paragraph after paragraph 2:
States Parties recognise that armed conflicts particularly undermine the
freedom from violence and abuse of persons with disabilities. States Parties
shall, therefore, take all appropriate legislative, administrative, social,
educational and other measures to protect persons with disabilities from
armed conflict.
Insert the phrase ‘including armed conflict’ between the words ‘violence’
and ‘injury’, and insert the word ‘harassment’ between the words ‘sexual’
and ‘exploitation’ in 3 so that it reads:
3. States Parties shall also take all appropriate measures to prevent violence,
including armed conflict, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual harassment, exploitation
and abuse, by ensuring, inter alia, support for persons with disabilities
and their families, including the provision of information.
Insert the word ‘harassment’ between the words ‘sexual’ and ‘exploitation’
in 4 so that it reads:
4. States Parties shall ensure that all facilities and programmes, both
public and private, where persons with disabilities are placed together,
separate from others, are effectively monitored to prevent the occurrence
of violence, injury or abuse, neglect or negligent treatment, maltreatment
or exploitation, including sexual harassment, exploitation and abuse.
Insert the phrase ‘including violence arising from armed conflict’ between
the words ‘violence’ and ‘injury’ and the word ‘harassment’ between the
words ‘sexual’ and ‘exploitation’ in 5 so that it reads:
5. Where persons with disabilities are the victim of any form of violence
including violence arising from armed conflict, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual harassment,
exploitation and abuse, States Parties shall take all appropriate measures
to promote their physical and psychological recovery and social reintegration.
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MEXICO
Art. 12 Protection against violence and abuse
May 27th, 2004
1. State Parties recognize that persons with disabilities are at greater
risk, both within or outside the home, of abandonment, violence, injury
or mental or physical abuse, neglect or negligent treatment, maltreatment
or exploitation, including sexual and economic exploitation and abuse.
2. Therefore, State Parties shall take all appropriate legislative, administrative,
social, educational and other measures to protect persons with disabilities
and to prevent these forms of violence and abuse, by ensuring, inter alia,
the provision of information.
3. Measures should also prohibit and protect persons with disabilities from,
forced interventions or forced institutionalization aimed at correcting,
improving or alleviating any actual or perceived impairment. and abduction.
4. Where persons with disabilities are victims of any form of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse, Where persons are the victims of
any form of violence , injury or abuse, State Parties shall take all appropriate
measures to promote the physical and psychological recovery and social reintegration
of persons with disabilities victims of any form of violence and abuse and
shall guarantee judicial involvement when appropriate. Such recovery and
social reintegration shall take place in an environment which foster self
respect and autonomy of persons with disabilities XXXX- New Zeland)
5. States Parties shall ensure the identification, reporting, referral and
investigation, prosecution and follow-up of instances of violence and abuse,
and the provision of protection services and, as appropriate, judicial involvement.
6. States Parties shall ensure that all facilities and programmes, public
and private, where persons with disabilities are placed, are effectively
monitored, in coordination with civil society, of these forms of violence
and abuse.
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UN System organizations
OHCHR
See references to international human rights conventions and jurisprudence.
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National Human Rights Institutions
NATIONAL HUMAN RIGHTS INSTITUTIONS
Intervention on Article 12
Thank you, Mr. Chair; National Human Rights Institutions feel very strongly
that Articles 11 and 12 should remain as separate Articles and not merged
as proposed by some delegations. The focus of Article 12 is on abuse and
violence, an occurrence which remains all too often in the lives of people
with disabilities.
We would particularly like to support the proposal made yesterday and this
morning by Morocco that suggested the importance of monitoring by independent
bodies.
We believe that national monitoring mechanisms, such as National Human Rights
Institutions, or similar structures, could contribute immensely to the monitoring
of violations in many national institutions, this function would already
fall within their mandates.
Chair, as national institutions, we will be making a more detailed intervention
on monitoring under Article 25
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ONTARIO HUMAN RIGHTS COMMISSION
Article 12 – Freedom from violence and abuse
The Commission is supportive of all the provisions of this draft Article.
The Commission’s consultation report, Time for Action: Advancing Human Rights
of Older Ontarians, identifies that the prevalence of disabilities and chronic
conditions increases with age, and that this “intersection” creates an even
more vulnerable population to the problems of abuse and discrimination.
The Report outlines the many forms of elder abuse and discusses ageism;
social and economic vulnerability; caregiver stress; lack of regulation
in care facilities; the shortage of long-term care beds; and inadequate
accessible and affordable housing, as contributors to elder abuse. The Report
made recommendations to government and community organizations in this regard.
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Non-governmental organizations
AUSTRALIAN NGOs
Draft article 12 - FREEDOM FROM VIOLENCE AND ABUSE
Thank you Mr Chairman,
We strongly support the content of draft article 12 but recommend the following
amendments:
(a) it is crucial to add harassment, victimisation, emotional and mental
abuse to the types of abuse specified in paragraphs 1,3, 4 and 5, and to
add references to economic exploitation. Violence and abuse occur in many
forms, some of which, such as mental or emotional abuse, are often unrecognized.
Their inclusion in this document will assist in highlighting these forms
of abuse;
(b) the article should contain an acknowledgement that certain groups of
people with disability are subject to even greater levels of abuse, particularly
women and children with disability, indigenous people with disability, and
people with multiple and severe impairments;
(c) the article should also address the fact that people with disability
are systemically excluded from programs, information and services provided
to the general population with the aim of reducing exposure to violence,
and emergency and short-term residential and other support services provided
to people escaping violence. The article ought to include a paragraph guaranteeing
that violence prevention and relief services are fully accessible to people
with disability;
(d) the phrase “in and out of the home” in paragraph 1 should be replaced
with the phrase “in all aspects of life;” and
(e) the references to state responsibilities which occur throughout the
article could be consolidated in a new paragraph for the purposes of clarity.
Finally, we support those comments that have been made to date regarding
the need for a separate article dealing with the human rights of people
with disability in circumstances of emergency, for example, refugees.
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BIZCHUT
Draft Article 12 – Freedom from Violence and Abuse
(a) The right to legal processes adapted to the special needs of a crime
victim with a disability - an integral element of protection against violence
and abuse
Persons with disabilities are more vulnerable to violence and abuse than
persons without disabilities. This phenomena is worsened by the inaccessibility
of investigative and judicial processes to persons with disabilities – particularly
for persons with communication difficulties arising from developmental,
physical or hearing disabilities. Inaccessibility of legal processes in
the police and in court denies them the opportunity of being heard and of
providing full statements, resulting in the majority of cases being closed,
or defendants acquitted because of insufficient evidence against them. This,
in turn, impacts directly on the level of violence and abuse – as offenders
rely on not being brought to trial or being acquitted for crimes against
persons with disabilities.
Examples of accommodations that can neutralize the impact of disability
on the giving of evidence, and genuinely enable a person with a disability
to convey the details of the event include: investigation by professionals
specially trained in the field of disabilities (mainly in the case of communication
difficulties arising from developmental or physical disabilities), providing
a professional for interpretation and “translation” between the victim and
the police investigators or the judges during investigative and judicial
procedures, giving evidence in the judge’s chambers or not in the presence
of the offender, providing interpreters or other effective means to make
all procedures and materials accessible to persons with the range of sensory
disabilities, and more.
It follows, that protection for persons with disabilities from violence
and abuse must include ensuring the adaptation of investigative and judicial
procedures to the special needs of persons with all types of disabilities,
and this should be explicitly stated in this Article. It should also be
established that the State shall take action to promote legislation that
ensures the accessibility of legal processes.
(b) Programs for sex education and for self-protection as an element of
protection against violence and abuse
We suggest adding to clause 3 that in addition to the provision of information
to persons with disabilities and their families, the State will initiate
and develop programs for sex education and for self-protection, thus enabling
persons with disabilities to better protect themselves from violence and
abuse.
(c) Compensation for crime victims
We suggest that the principle of financial compensation to the victim, by
the offender, be added, and that the State promote legislation that anchors
this right in law.
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EUROPEAN DISABILITY FORUM
Draft Article 12 Freedom from violence and abuse
A special reference to disabled women and girls should be added in the first
paragraph.
EDF proposes to add a specific paragraph which will protect disabled people
from violence and abuse within their family environment.
Also important, is to include a reference to statistics on violence against
disabled people, including disabled women and girls.
A specific paragraph on abuse that disabled people suffer from private individuals
should also be included. Hate crime, manifested either verbally, physically
or both, harassment and other forms of violence and abuse should be referred
to and the measures to prevent this from happening should include legal
remedies.
EDF also supports the inclusion of a specific reference to legal remedies
in paragraph 6 of the article, as suggested in footnote 39. This should
include penalties for those found guilty of violence against disabled people.
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INTERNATIONAL SAVE THE CHILDREN ALLIANCE
Draft Article 12 - freedom from violence and abuse
This article is important for children. Children generally are extremely
vulnerable to violence and abuse. And in most countries in the world, it
remains lawful to hit them. Disabled children are even more vulnerable.
So, it is important to emphasize that children with disabilities must have
the same level of protection as adults with disabilities. Many children
and young people with disabilities have also argued the importance of sensitizing
parents to understand their children’s rights not to be hurt and abused.
Suggested changes
12.1 States Parties recognise that persons with disabilities, in particular
women and children, are at greater risk, both within and outside the home,
of violence, injury or abuse, neglect or negligent treatment, maltreatment
or exploitation, including sexual exploitation and abuse. States Parties
shall, therefore, 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 violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including
sexual exploitation and abuse. These measures shall acknowledge the equal
rights of children to protection from all forms of violence and abuse.
Suggested additional paragraph
12.2. States Parties shall take all appropriate measures to establish child
protection mechanisms which are accessible to children with disabilities,
including information on accessing help, training of all relevant professionals,
introduction of child protection policies in all institutions, parent education
programmes, and safe reporting procedures.
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JAPAN DISABILITY FORUM
<Draft Article 12> Freedom from violence and abuse
Original Text of the Draft
2 Such measures should prohibit, and protect persons with disabilities from,
forced interventions or forced institutionalisation aimed at correcting,
improving, or alleviating any actual or perceived impairment, and abduction.
JDF’s Comment to this part
In 12-2, the obligatory provision for the prohibition of “forced intervention
or forced institutionalisation” as well as the obligatory provision for
protection of persons with disabilities from these should be kept.
Original Text of the Draft
4 States Parties shall ensure that all facilities and programmes, both public
and private, where persons with disabilities are placed together, separate
from others, are effectively monitored to prevent the occurrence of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse.
JDF’s proposed Amendment
Add the underlined part to para 4
State Parties shall ………………………….. to prevent the occurrence of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse, against persons with disabilities.
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LANDMINES SURVIVORS NETWORK
DRAFT ARTICLE 12 COMMENTS
The inclusion of an article explicitly addressing situations of violence
and abuse is in keeping with the approach of the UN Standard Rules, as well
as other treaties. (Cf. UN Standard Rules on the Equalization of Opportunities
for Persons with Disabilities, Rule 9, para. 4; Convention on the Elimination
of All Forms of Discrimination Against Women, Article 6; Convention on the
Rights of the Child, Articles 34 – 39)
Although Draft Article 12(1) references “both within and outside the home,”
it may be necessary to more explicitly specify the need for States to protect
against abuse committed by private individuals and entities.
Draft Article 12(3) discusses the need for States Parties to take measures
to prevent violence and abuse, but it does not fully elaborate the kinds
of measures to be undertaken. For example, the provision states the need
for provision of information to families and people with disabilities, but
it does not reference the specific need to educate people with disabilities
and their families about how to avoid abuse, recognize abuse and report
incidents of abuse. (Cf. UN Standard Rules on the Equalization of Opportunities
for Persons with Disabilities, Rule 9, para. 4) In addition, it would be
important to reference the need to train those working with people with
disabilities to identify and prevent abuse. It is also important to emphasize
the need for any information on such matters to be available in accessible
formats, issues that could also be addressed in Draft Article 19 (Accessibility).
Draft Article 12(4) addresses the need for monitoring of both public and
private facilities and programs, but it does not discuss how such monitoring
should be conducted. For example, the Ad Hoc Committee may wish to incorporate
requirements that the monitoring be conducted by independent authorities,
and for the reports of such bodies to be made available to the public.
Draft Article 12(5) elaborates actions to be taken by the State with regard
to victims of violence and abuse. In order to ensure that such actions do
not contravene the wishes, autonomy of decision-making and dignity of such
people, it would be useful to include language such as “such recovery and
reintegration shall take place in an environment which fosters the health,
self-respect, dignity and autonomy of the person.” (Cf. Based in part on
the Convention on the Rights of the Child, Article 39) It is also important
to consider the coverage of this article with regards to people who were
not previously disabled, but became disabled as a result of violence or
abuse.
Footnote 39 asks whether remedies should also be referenced in Article 12(6).
Given that references are made in Article 10(2)(d) to the need for compensation
for those unlawfully deprived of their liberty, the inclusion of a reference
to remedies would seem important in Article 12 as well.
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PHYSICAL DISABILITY COUNCIL OF AUSTRALIA
Freedom from Violence & Abuse: Draft Article 12
Section 3 of this Draft Article reads:
“States Parties shall also take all appropriate measures to prevent violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse, by ensuring, inter alia, support
for persons with disabilities and their families, including the provision
of information.”
We would like to see the word accessible inserted before the word information.
Access to information is often the first step towards people participating
in the community. Access to information means, in effect, access to opportunities
and therefore choices to participate in the community by:
• the provision of appropriate information using a variety of methods including
alternate languages, audio, braille, easy English or the first language
of other countries.
• the overall increase in the use of interpreters independent of families
and relatives.
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WORLD BLIND UNION
FREEDOM FROM VIOLENCE AND ABUSE
Article 12:
This Article must be focused on both individual perpetrators and violence
committed by society at large.
Special attention should be paid to women and children in this Article.
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WORLD NETWORK OF USERS AND SURVIVORS OF PSYCHIATRY
WNUSP Position Paper:
Draft Article 12
WNUSP COMMENT: The Ad Hoc Committee may wish to explicitly mention forced
labor and economic exploitation of persons with disabilities among the categories
of violence and abuse, or to include a separate article addressing this
violation of human rights under the ICCPR and other conventions against
slavery and forced labor.
WNUSP interventions at the Third Session:
Draft article 12
FREEDOM FROM VIOLENCE AND ABUSE
May 26, 2004
World Network of Users and Survivors of Psychiatry generally supports the
Working Group text for articles 9 through 12, and in particular urges that
the following language be retained.
In Article 9:
States parties shall
…
(b) accept that persons with disabilities have full legal capacity on an
equal basis as others, including in financial matters;
(c) ensure that where assistance is necessary to exercise that legal capacity:
(i) the assistance is proportional to the degree of assistance required
by the person concerned and tailored to their circumstances, and does not
interfere with the legal capacity, rights and freedoms of the person;
…
(d) ensure that persons with disabilities who experience difficulty in asserting
their rights, in understanding information, and in communicating, have access
to assistance to understand information presented to them and to express
their decisions, choices and preferences, as well as to enter into binding
agreements or contracts, to sign documents, and act as witnesses;
In Article 10:
1. States Parties shall ensure that persons with disabilities:
…
b) are not deprived of their liberty unlawfully or arbitrarily, and that
any deprivation of liberty … in no case shall be based on disability.
In article 11:
1. States Parties shall take all effective legislative, administrative,
judicial, educational or other measures to prevent persons with disabilities
from being subjected to torture or cruel, inhuman or degrading treatment
or punishment.
2. In particular, States Parties shall prohibit, and protect persons with
disabilities from, medical or scientific experimentation without the free
and informed consent of the person concerned, and shall protect persons
with disabilities from forced interventions or forced institutionalisation
aimed at correcting, improving, or alleviating any actual or perceived impairment.
In article 12:
2. Such measures should prohibit, and protect persons with disabilities
from, forced interventions or forced institutionalisation aimed at correcting,
improving, or alleviating any actual or perceived impairment….
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