One example of how society has come to view gender and disability is demonstrated by the iconographic historical symbol of justice, the blindfolded Lady Justice. In a creative book, “Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms”, Yale law professors Resnik and Curtis trace the philosophical uses of the symbol, “Blindness as a deficit presumes that sight is requisite to understanding, whereas blindness as an asset presumes that sight can corrupt judgment.” This iconic image highlights the ongoing debates about the role of women with disabilities in the justice system. Historically and to today, many legal systems restrict the legal capacity of women who are blind, as well as women with other disabilities, solely because of their disability. This contrasts with that blind (or blinded) icon of justice, Lady Justice, seen as a symbol of rationality and even handedness.
International Normative Framework.
The intersection between the Convention on the Rights of Persons with Disabilities (CRPD), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), both address legal capacity, access to justice, equal recognition before the law, gender and disability stereotyping, state due diligence obligations, among other issues. CRPD Article 6 adopts a gendered lens-recognizing the multiple and intersecting dimensions of women’s lives and Article 12 requires equal recognition before the law, or legal capacity. Article 13 includes the right to access to justice, requiring States to provide procedural and age-appropriate accommodations, to facilitate effective participation.” CEDAW Article 15 requires states to ensure that men and women have equal access to the legal system, ensuring legal autonomy. Because women with disabilities have rights under both CEDAW and CRPD, State Parties have a due diligence obligation to afford them full and fair legal capacity, and access to the justice system.
Addressing Violence Through the Legal System.
As noted in “Forgotten Sisters - A Report on Violence against Women with Disabilities: & Overview of Its Nature, Scope, Causes & Consequences” authored by me and Professor Hope Lewis, violence against women with disabilities occurs in the home, community, perpetrated and/or condoned by the state and private institutions, and in the transnational sphere. Forms include physical, psychological, sexual, financial, entrapment, degradation, neglect, trafficking, detention, denial of health care, forced sterilization and psychiatric treatment, among others. Women with disabilities are more likely to experience violence than non-disabled women, over a longer period, resulting in more severe injuries. Their abuser may also be their caregiver; someone relied on for care or mobility. In various ways the justice system itself (and therefore the state) perpetrates and/or condones the violence through various barriers.
Women with Disabilities as Witnesses.
The justice system often fails to see women with disabilities as competent witnesses, a result of damaging stereotypes, or difficulties in communication without accommodations, as highlighted by the work of the Disability Discrimination Legal Service. The general failure of society to see women with disabilities as sexual beings and the tendency to “infantilize” them, while on the other hand, seeing women with mental disabilities as hypersexual and lacking self-control, results in their complaints or testimony being disregarded.
As noted by Benedet and Grant in “Hearing the Sexual Assault Complaints of Women with Mental Disabilities”, the mere fact that a woman has a disability, especially psycho-social or intellectual disabilities, or that she require assistive communication or accommodations, may result in the justice system viewing her as lacking credibility. Judges may require more corroborating evidence when the witness is a woman with disabilities than in other cases, and prior mental health treatment may be used to discredit testimony. The complainant frequently does not serve as sole witness against the accused. Women with cognitive disabilities may have more difficulty with long term memory or remembering the sequence of events, which may make them appear less credible. Paternalistic attitudes may cause the legal system to view them as too fragile to withstand rigors of examination.
Exclusions of testimony are particularly problematic in gender-based violence and sexual assault cases, where the testimony of the parties and the credibility of the witnesses are exceptionally important, placing women with disabilities at even greater risk, since perpetrators may be more likely to attack them because they know that their complaints may be taken less seriously. If prior complaints were dismissed, they are less likely to report abuse in the future, perpetuating the violence.
Under the CRPD, forced, coerced or non-consensual sterilization is a violation of human rights, and women with disabilities have the right to retain fertility on an equal basis with others. International Federation of Gynecology and Obstetrics Guidelines state that only women themselves can give ethically valid consent to their sterilization, and sterilization cannot be made a condition of access to medical care or other benefit. Despite legal prohibitions, involuntary sterilization has long been used to restrict the fertility of some persons with disabilities, especially those with intellectual disabilities.
The failure of some countries to prohibit involuntary sterilization has been challenged before international tribunals. In Gauer v France, at the European Court of Human Rights, a case was filed on behalf of five women who were sterilized without their consent as a form of contraception. Sterilization also has been used as a technique for menstrual management, but it is rarely the only option and should not be done without informed consent. Women with disabilities should have access to voluntary sterilization on an equal basis with others but not forced to undergo such procedures.
Discriminatory Termination of Parental Rights.
Stereotypical views of women with psychosocial, intellectual or physical disabilities as “unfit” mothers may result in termination of parental rights by social service agencies or through divorce and child visitation and custody proceedings, especially when the other parent does not have a disability, according to the research of Lightfoot et al. in “The Inclusion of Disability as a Condition for Termination of Parental Rights.” Fear of women with disabilities as parents persists, although evidence demonstrates that parents with disabilities are no more likely to maltreat children, or to raise so-called “defective” children than non-disabled parents.
Statutes in many countries on termination of parental rights, child custody and divorce include disability-related grounds for termination of parental rights or loss of custody, and may emphasize and focus on disability status rather than actual parenting skill or behavior, implicitly equating parental disability with parental unfitness. Because of such legal definitions and societal prejudices, mothers with disabilities may be subjected to greater scrutiny by social service agencies than non-disabled women. Fear of being incorrectly perceived as an unfit mother by a court on the basis of disability, and the breakdown of their relationship with children, has frequently discouraged mothers with disabilities from separating from an abusive partner.
The Disability and Parental Rights Legislative Change Project, University of Minnesota, “Guide for Creating Legislative Change” notes that in order to prevent disability discrimination, statutes should be free of discriminatory language; affirm that the statute cannot be used for disability discrimination; acknowledge that successful parenting can occur with accommodations; and require multidisciplinary approaches to address this situation.
These selected examples of limitations on access to justice for women with disabilities, and the ways in which the justice system itself violates their human rights, accentuates the urgent need to include issues of concern to women with disabilities in legal reform efforts addressing access to justice.
* This article is adapted from Stephanie Ortoleva & Hope Lewis: “Forgotten Sisters - A Report on Violence against Women with Disabilities: & Overview of Its Nature, Scope, Causes & Consequences” (August 2012) and Stephanie Ortoleva, “Inaccessible Justice: Persons with Disabilities and the Legal System,” International Law Society of America, Journal of International and Comparative Law, 17 ILSA J. Int'l & Comp. L. 281 (Spring 2011), both of which can be accessed at: http://ssrn.com/author=1875099.