CHAPTER 34

• Jurisdiction: United States

CHAPTER 34

Women with Disabilities: Forever on the Edge of #MeToo?

Lucy-Ann Buckley¹

Introduction

In 2006, a seventeen-year-old deaf-mute girl, known only as RPB, was raped in the Philippines by a neighbor. Supported by her sister, she made a police complaint later that day. She was interviewed by a male police officer in breach of regulations. The police did not have a sign language interpreter, but RPB's sister was able to interpret for her. The police wrote out RPB's statement in Filipino, which she could not read because the education system for the deaf was almost exclusively based on written English. She underwent a medical examination; she then had to wait nearly five years for her case to be heard in court. During this time, she received no counseling or support services and lived in proximity to her rapist. Most of the delay was due to the lack of sign language interpreters in the court system. Eventually, some interpretative support was obtained from a non-governmental organization, but RPB was still left without interpretation for significant parts of the hearing.

On the day of the hearing, RPB had to wait long hours, in the presence of her rapist, for the case to be heard. The court then acquitted the defendant, holding that RPB was not a credible witness and had failed to prove that she had not consented to sex. Ironically, there was no interpreter in court at this point to explain the verdict to RPB. The court said that RPB had not acted reasonably; an ordinary Filipina would have summoned "every ounce of her strength and courage to thwart any attempt to besmirch her honour and blemish her purity." The court was particularly critical of RPB's failure to shout for help, saying that "her being a deaf mute does not render her incapable of creating noise." Essentially, RPB's failure to act like the "ideal victim" undermined her credibility.

RPB subsequently brought a complaint to the CEDAW Committee (see below), which considered that the decision to acquit the accused was based on harmful gender myths and stereotypes, and that RPB had been denied the right to a fair trial. Although the verdict could not be overturned, the committee recommended that the Philippines should review its rape laws and interpretation policy, and that RPB should receive compensation and free counseling.²

RPB's story illustrates many of the problems facing women with disabilities in relation to gender-based violence. It seems likely that, as a neighbor, RPB's rapist targeted her specifically because he knew she had a disability. Research demonstrates that women and girls with disabilities are at a significantly increased risk of violence and sexual abuse compared to women without disabilities³ and men with disabilities.⁴ It has been estimated that the likelihood of rape or physical or sexual abuse is at least two⁵ and possibly three times higher for women with disabilities than those without.⁶ Within this broad figure, there are further intersections—for instance, while the risk of abuse is high for all children with disabilities (almost four times higher than for children without disabilities), the risks are even higher for girls with particular impairments— those who are deaf (like RPB), or who are blind or autistic, or who have intellectual, psychosocial, or multiple disabilities (again like RPB). Indigenous girls and women with disabilities face a higher risk of early marriage, sexual violence, and unwanted pregnancy. Other noteworthy intersections are based on race, sexuality, poverty, or involvement in humanitarian crises or conflict or post-conflict settings, where women with disabilities are particularly vulnerable.⁷

However, RPB's story also illustrates many of the systemic barriers that severely limit the ability of women with disabilities to access justice. These include hostile, uninformed, and inaccessible courts and complaints procedures, the application of restrictive gender stereotypes, and the lack of effective remedies. The effect of harmful gender stereotypes can be even more pronounced in situations involving disability: in RPB's case, the stereotype of the "ordinary Filipina" who would struggle, shout, and make noise disadvantaged all female rape victims, but had a particularly harsh impact on RPB, given her greatly reduced capacity for noise-making.

International Human Rights Framework

Violence against women with disabilities has been increasingly recognized in international human rights law. The 1979 UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) does not expressly reference gender-based violence. However, the CEDAW Committee, which monitors implementation of the convention, has interpreted it to encompass gender-based violence as an aspect of discrimination, both in relation to individual complaints (as in RPB's case) and through a series of general recommendations (non-binding but highly persuasive treaty interpretations). General Recommendation No. 35 (2017) (updating General Recommendation No. 19, made in 1992)—defines gender-based violence as "violence which is directed against a woman because she is a woman or that affects women disproportionately." This expansive approach includes acts that inflict physical, mental, or sexual harm or suffering, deprivation of liberty, and related threats or coercion. Intersectional gender-based violence is explicitly recognized, including violence against women with disabilities. The UN Special Rapporteur on violence against women, its causes and consequences has also emphasized that violence particularly affects marginalized women, including women with disabilities, due to the effects of multiple layers of discrimination.⁸

Intersectional discrimination against women and girls with disabilities is explicitly recognized by Article 6 of the UN Convention on the Rights of Persons with Disabilities (CRPD), in force since 2008. Although Article 6 itself does not explicitly mention gender-based violence, the Preamble to the CRPD notes that women and girls with disabilities are often at greater risk of violence, exploitation and abuse. Furthermore, Article 6 must be taken into account in interpreting other provisions in the CRPD, including the rights to liberty, education, employment, health, and access to justice. Of specific relevance to harassment are the rights to integrity of the person (including bodily and mental integrity) in Article 17, and the right to freedom from violence, exploitation, and abuse contained in Article 16. Article 16 also explicitly references the gender-based aspects of such abuse.

Article 6 is amplified by General Comment No. 3, adopted by the CRPD Committee in 2016. This again provides an authoritative though non-binding interpretation of Article 6. General Comment No. 3 repeatedly highlights not only the intersection of gender and disability in general, but the importance of further intersections, such as those based on refugee or migrant status, sexual orientation, race or ethnicity, age and religion, or based on particular kinds of disability (for instance, multiple disabilities, albinism, intellectual, psychosocial or sensory conditions, or physical impairments). It outlines the scale of intersectional violence against women with disabilities, highlighting that they are often at greater risk of violence, injury, abuse, neglect, and exploitation than women without disabilities. It also recognizes that violence may be interpersonal or structural—in other words, violence is not just caused by individual perpetrators, but results from social attitudes, ideologies, practices, and institutions, including legal rules. This point has also been emphasized by the CEDAW Committee in General Recommendation No. 35.

The CRPD has been ratified (made legally binding) by 177 countries to date, though there are notable exceptions, such as the United States. Ratification obliges UN member States to take positive steps to promote equality and eliminate discrimination, so the CRPD has a significant impact on national legal systems. However, only ninety-three countries have ratified the Optional Protocol to the CRPD, which permits individuals to complain directly to the UN when their rights have been breached. The CRPD also has an effect at supra-national level: for instance, the European Union is a signatory and is therefore required to interpret relevant areas of its law in light of the treaty.

Other international measures also cover disability and sexual abuse or harassment, though not all recognize intersectionality. The UN Convention on the Rights of the Child, which applies to children up to the age of eighteen, requires States to protect children from sexual exploitation and abuse. It also specifies that all rights under the convention shall apply without discrimination, including discrimination based on sex or disability. Article 23 of the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa (2003), ratified by thirty-six States to date, requires signatories to ensure that women with disabilities are protected from violence, including sexual abuse. By contrast, although the European Union has a legal framework to combat harassment based on gender, disability, race, and other grounds,⁹ it does not yet provide a remedy for harassment based on a combination of these grounds. Furthermore, EU law accords different levels of protection to race, gender, and other protected characteristics, such as disability. Protection is broadest in relation to race and covers harassment in contexts other than employment (e.g., education, healthcare, and access to services). However, gender protection is narrower, and disability protection is narrower still, applying only to employment and vocational training. Therefore, even if EU law covered intersectional claims, harassment based on both gender and disability would not be covered outside of employment and vocational training.

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