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Human Rights International Law

Addressing Violence Against Women with Disabilities

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Foreword

This short article seeks to briefly educate readers on the prevalence and manifestations of violence against women with disabilities and expound upon the existing legal frameworks that address this human rights issue. However, given the page limitations placed upon the article, it is necessary to preface that there are many inherent complexities that deserve a closer analysis that are not covered within this article. Some of the complexities not explored within this article include the intersection of women, disability, and race. Additionally, this article addresses gender specifically in terms of cis “women,” while not analyzing violence perpetrated against non-binary persons or trans women. This is attributed to the fact that there is a significant, if not complete, lack of reporting on the rates of violence against non-binary persons with disabilities. This is a note-worthy and disappointing gap in global research within the field and is addressed briefly at the end of the article as a necessary recommendation.

Introduction

Women all around the world experience horrific rates of violence.[1] Even more so appalling are the disproportionate rates of sexual and gender-based violence against women with disabilities.[2] The current international human rights framework applicable to violence against women with disabilities encompasses treaties acknowledging both the human rights of women along with those addressing the rights of persons with disabilities separately, but often fails to adequately depict the intersectionality of the two. Stephanie Ortoleva, Founder and President of Women Enabled International, emphasizes that “[a]lthough women and girls with disabilities experience many of the same forms of violence that all women experience, when gender and disability intersect, violence has unique forms and causes, and results in unique consequences.”[3] This article discusses the prevalence and causes of violence against women internationally, and expounds upon the existing legal frameworks that address this human rights issue.

Prevalence of Violence Against Women with Disabilities

Approximately 15 percent of the world population lives with a disability.[4] However, globally, there is a higher rate of violence against women with disabilities than that of men with disabilities.[5] This gender-based violence disparity becomes apparent very early on, taking various forms.[6] For instance, female infants born with disabilities are more likely to die through mercy killings than male infants with disabilities.[7] Additionally, women with disabilities experience up to 10 times more gender-based violence than those without disabilities.[8] These numbers are further exacerbated when taking a closer look at specific disabilities, as individuals that are deaf, blind, or have intellectual disabilities face even more staggering rates of violence.[9]

When addressing sexual and gender-based violence against women with disabilities in the United States, the disproportionate rates mirror those of global statistics.[10] In the U.S., approximately 20 percent of all women and girls have a disability.[11] However, women with disabilities are two to three times more likely to experience gender-based violence than non-disabled persons of the same gender identity.[12] More specifically, 80 percent of women with disabilities are sexually assaulted at least once in their lifetime nationally.[13]

Causes and Manifestations of Violence Against Women with Disabilities

There are many causes and manifestations of violence against women with disabilities. Oftentimes, and as permitted by law, women with disabilities are denied the right to make decisions concerning their own reproductive and sexual health.[14] Recently, Britney Spears’ conservatorship has illustrated several forms of violence against women with disabilities, one of which has been restrictions on the reproductive freedom of women with disabilities.[15] In June of 2021, Britney Spears addressed the court in a long-awaited statement, revealing that she “would like to be able to get married and have a baby. I was told right now in the conservatorship, I’m not able to get married or have a baby, I have an IUD…so I don’t get pregnant. I wanted to take the IUD out…. But this so-called team won’t let me…”[16]

Restrictions on reproductive freedom, like the forced use of birth control, is just one sub-category of many in which violence is perpetrated against women with disabilities.[17] Violence against women with disabilities takes many forms, including: sexual harassment or assault, rape, forced sterilization, forced use of contraception, and forced abortions, as well as other violence that can be presented in the guise of treatment.[18] Additionally, living with a disability also increases young peoples’ risk of experiencing slavery, either in the form of sexual trafficking or forced labor.[19]

Violence among women with disabilities is prevalent for many co-contributing reasons.[20] Some of these attributable factors include societal attitudes based on prejudices and fear of otherness, lack of knowledge about disability, isolation and segregation from the community, risk factors related to perpetrators viewing them as easy targets, over-burdening of parents and lack of support, overextended and untrained care personnel.[21]

Moreover, access to justice for persons with disabilities is lacking for reasons including, but not limited to, diminished physical access to court houses and testimony that is often perceived to lack credibility by law enforcement and judicial officers.[22] Also notable is that law enforcement and judicial officers often minimize the crimes perpetrated against women with disabilities.[23] For example, categorizing a crime as abuse or neglect when it should really be tried as assault or rape.[24] In sum, violence against women takes many forms, whether it be physical violence, limitations on a person’s autonomy and fundamental freedoms, or systemic factors that diminish the ability for persons with disabilities to access the justice system.[25]

Pertinent International Human Rights Law

International human rights law is lacking in comprehensively addressing the intersection of violence against women and violence against persons with disabilities. As alluded to in the introduction of this article, there is no existing United Nations (“UN”) treaty that specifically addresses the rights of women with disabilities, thus the protections and rights available to both women and persons with disabilities as intersecting factors should be carefully analyzed. The rights and protections for women with disabilities are promulgated in primarily two international conventions: the 1979 Convention on the Elimination of All Forms of Discrimination against Women[26] (“CEDAW”) and the 2006 Convention on the Rights of Persons with Disabilities[27] (“CRPD”). The CEDAW and CRPD share many common principles, such as obligations for parties to enact legislation and legal protections for women and/or persons with disabilities and to work to alleviate stereotypes and inequalities towards women and/or persons with disabilities.[28] Likewise, both treaties address legal capacity and access to justice as crucial elements to human rights.[29]

Notably, the CRPD was the first comprehensive human rights treaty that specifically addressed the rights of persons with disabilities.[30] Additionally, it received the highest number of signatories on its opening day of any other UN convention, with eighty-two signatories.[31] The treaty provides a broad categorization for individuals with disabilities and clarifies how fundamental freedoms and human rights apply to persons with disabilities.[32]

Moreover, the CRPD discusses the vital importance of legal capacity for persons with disabilities, stating:

“Legal capacity is indispensable for the exercise of civil, political, economic, social and cultural rights. It acquires a special significance for persons with disabilities when they have to make fundamental decisions regarding their health, education and work. The denial to legal capacity to persons with disabilities has, in many cases, led to their being deprived of many fundamental rights, including the right to vote, the right to marry and found a family, reproductive rights, parental rights, [and] the right to give consent to intimate relationships and medical treatment[.]”[33]

Additionally, this “denial of legal capacity to women with disabilities not only violates their human rights but can also exacerbate their vulnerability to sexual and gender-based violence.”[34] It is this fundamental right to legal capacity that has recently been highlighted by Ms. Spear’s testimony in regards to restrictions on her reproductive rights, parental rights, and right to give consent to medical treatment.[35]

Relevant Regional Disability Rights Law

Following Ms. Spears’ testimony, the American Civil Liberties Union commented on the human rights violations present within her case, as well as the long history of persons with disabilities experiencing violence in the United States.[36] For instance, in the disability rights case Buck v. Bell (1927)[37] a woman named Carrie Buck sought legal recourse against a family that had taken her in as a servant and ultimately committed her to an institution that carried out her forced sterilization.[38] Ultimately, the Court decided that forced sterilization of persons with disabilities was legal, and Justice Holmes went so far as to promote eugenics.[39] The cruel language of Justice Holmes’ opinion had a profound impact on persons with disabilities and the ruling in Buck has still never formally been overturned.[40]

However, from 1907-1960, the U.S. prison system was permitted to sterilize persons with disabilities.[41] This policy was also motivated by eugenics and contributed to approximately 60,000 persons with disabilities being sterilized during this time period, approximately two-thirds of which were women.[42]

Despite the fact that the United States does have many federal acts applicable to women with disabilities, including: the Americans with Disabilities Act (“ADA”), the Patient and Protection Affordable Care Act of 2010, the Violence Against Women Act of 2013 (“VAWA”), and the Prison Rape Elimination Act (“PREA”) of 2003,[43] more than half of the states still permit forced sterilization of people under conservatorships. Additionally, as noted by the U.S.-based international non-profit Women Enabled International,

“state laws continue to enshrine stereotypes about women with disabilities as mothers: eleven states retain statutory language authorizing a court to order the involuntary sterilization of a person with disabilities, and courts fail to consistently recognize involuntary sterilization as a violation of the ADA and human rights.”[44]

Recommendations

The international efforts mentioned within this article are not all-inclusive, but a mere sampling. What is discernible, however, is that until there is more collaboration between international and regional agencies on the intersection of women’s rights and disability rights, it will be difficult to formulate approaches to alleviate any amount of violence experienced by women with disabilities.

Moving forward, in response to the lack of UN focus on the intersection of women’s rights and disability rights, it would likely be beneficial for organizations such as UN Women and the CRPD Committee to have more collaboration and submit reports or comments “incorporating a gender-sensitive and disability-inclusive approach.”[45]

Additionally, in regards to statistics, it is essential that data collection on both a regional and international level is improved and expanded. Much of current data does not focus specifically on women with disabilities, and there is near non-existent data on violence perpetrated against various gender identity groups with disabilities.

Lastly, continued awareness and education are essential to advocacy efforts for women and non-binary persons with disabilities. However, there are limited non-governmental organizations that address disability rights, whether regionally or internationally. And there are even fewer non-governmental organizations that specifically grapple with the intersection of women’s rights and disability rights.

  1. UN Women, Facts and figures: Ending violence against women, (March 2021) https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures. ↑
  2. Stephanie Ortoleva and Hope Lewis, Forgotten Sisters – A Report on Violence Against Women with Disabilities: An Overview of its Nature, Scope, Causes and Consequences, Northeastern University School of Law Research Paper No. 104-2012, (August 21, 2012) p. 21, https://ssrn.com/abstract=2133332. ↑
  3. Id. ↑
  4. United Nations Population Fund, Five things you didn’t know about disability and sexual violence, (October 30,2018) https://www.unfpa.org/news/five-things-you-didnt-know-about-disability-and-sexual-violence. ↑
  5. United States Department of Health and Human Services, Office of Women’s Health, “Violence Against Women with Disabilities,” (July 3, 2020) https://www.womenshealth.gov/relationships-and-safety/other-types/violence-against-women-disabilities. ↑
  6. United Nations Population Fund, Five things you didn’t know about disability and sexual violence, (October 30,2018) https://www.unfpa.org/news/five-things-you-didnt-know-about-disability-and-sexual-violence. ↑
  7. Id. ↑
  8. Id. ↑
  9. Id. ↑
  10. Stephanie Ortoleva and Suzannah Phillips, United States Laws, Policies, and International Human Rights Obligations Impacting Health & Safety of Women with Disabilities, Women Enabled International (September 2015))https://www.womenenabled.org/pdfs/WEI%20Recommendations%20&%20Fact%20Sheet%20for%20WG%20DWLP%20U.S.%20September%202015%20Visit%20Revised%20FINAL.pdf. ↑
  11. Id. ↑
  12. Id. ↑
  13. Id. ↑
  14. Id. ↑
  15. Zoe Brennan-Krohn and Rebecca McCray, Britney Spears’ Reproductive Freedom is a Disability Rights Issue, ACLU (June 25, 2021) https://www.aclu.org/news/civil-liberties/britney-spears-reproductive-freedom-is-a-disability-rights-issue/. ↑
  16. Id. ↑
  17. United Nations Population Fund, Young Persons with Disabilities: Global Study on Ending Gender-Based Violence, and Realizing Sexual and Reproductive Health and Rights, (2013 ) p. 25, https://www.unfpa.org/sites/default/files/pub-pdf/Final_Global_Study_English_3_Oct.pdf. ↑
  18. Id. ↑
  19. Id. ↑
  20. Hughes et al. Prevalence and risk of violence against adults with disabilities: a systematic review and meta-analysis of observational studies, World Health Organization (February 28, 2012) p. 3, https://www.who.int/disabilities/publications/violence_children_lancet.pdf. ↑
  21. Id. ↑
  22. Stephanie Ortoleva and Suzannah Phillips, United States Laws, Policies, and International Human Rights Obligations Impacting Health & Safety of Women with Disabilities, Women Enabled International (September 2015))https://www.womenenabled.org/pdfs/WEI%20Recommendations%20&%20Fact%20Sheet%20for%20WG%20DWLP%20U.S.%20September%202015%20Visit%20Revised%20FINAL.pdf. ↑
  23. Id. ↑
  24. Id. ↑
  25. Id. ↑
  26. Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180, U.N. Doc. A/RES/34/180 (Dec. 18, 1979), available at http://www.unhcr.org/refworld/docid/3ae6b3970.html. ↑
  27. Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Dec. 13, 2006), available at http://www.unhcr.org/refworld/docid/45f973632.html ↑
  28. Stephanie Ortoleva and Hope Lewis, Forgotten Sisters – A Report on Violence Against Women with Disabilities: An Overview of its Nature, Scope, Causes and Consequences, Northeastern University School of Law Research Paper No. 104-2012, (August 21, 2012) p. 21, https://ssrn.com/abstract=2133332. ↑
  29. See Article 23 of the CRPD, which reinforces the “right of people with disabilities to found and maintain a family and to retain their fertility on an equal basis with others.” See also, Article 12 of the CRPD, which “reaffirms the right of persons with disabilities… to enjoy legal capacity on an equal basis with others, including access to the support they may require to exercise their legal capacity.” UN Committee on the Rights of Persons with Disabilities(CRPD Committee), Concluding Observations: Tunisia, para. 29, U.N. Doc. CRPD/C/TUN/CO/1 (2011). ↑
  30. UN Department of Economic and Social Affairs, Convention on the Rights of Persons with Disabilities (CRPD),.https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html. ↑
  31. Id. ↑
  32. Id. ↑
  33. Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Dec. 13, 2006), available at http://www.unhcr.org/refworld/docid/45f973632.html ↑
  34. United Nations Population Fund, Young Persons with Disabilities: Global Study on Ending Gender-Based Violence, and Realizing Sexual and Reproductive Health and Rights, (2013 ) p. 25, https://www.unfpa.org/sites/default/files/pub-pdf/Final_Global_Study_English_3_Oct.pdf. ↑
  35. Zoe Brennan-Krohn and Rebecca McCray, Britney Spears’ Reproductive Freedom is a Disability Rights Issue, ACLU (June 25, 2021) https://www.aclu.org/news/civil-liberties/britney-spears-reproductive-freedom-is-a-disability-rights-issue/. ↑
  36. Id. ↑
  37. Buck v. Bell, 274 U.S. 200 (1927). ↑
  38. Zoe Brennan-Krohn and Rebecca McCray, Britney Spears’ Reproductive Freedom is a Disability Rights Issue, ACLU (June 25, 2021) https://www.aclu.org/news/civil-liberties/britney-spears-reproductive-freedom-is-a-disability-rights-issue/. ↑
  39. Id. ↑
  40. Id. ↑
  41. Allison Carey, Gender and Compulsory Sterilization Programs in America: 1907- 1950, Journal of Historical Sociology, (1 March 1998). ↑
  42. Id. ↑
  43. Stephanie Ortoleva and Suzannah Phillips, United States Laws, Policies, and International Human Rights Obligations Impacting Health & Safety of Women with Disabilities, Women Enabled International (September 2015))https://www.womenenabled.org/pdfs/WEI%20Recommendations%20&%20Fact%20Sheet%20for%20WG%20DWLP%20U.S.%20September%202015%20Visit%20Revised%20FINAL.pdf. ↑
  44. Id. ↑
  45. Stephanie Ortoleva and Hope Lewis, Forgotten Sisters – A Report on Violence Against Women with Disabilities: An Overview of its Nature, Scope, Causes and Consequences, Northeastern University School of Law Research Paper No. 104-2012, (August 21, 2012) p. 21, https://ssrn.com/abstract=2133332. ↑

 

AUTHOR

Kenzie Poole
Associate Member 2021-2022

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