Guest Contribution: O’Mahony on Safeguarding People with Disabilities
We are delighted to welcome this guest contribution from Charles O’Mahony of the Centre for Disability Law and Policy at NUI Galway. This is cross posted from the Disability Law News blog. You can find out more about Charles on the guest contributors page.
Safeguarding Persons with Disability from Abuse and Exploitation
There is a growing awareness around abuse perpetrated against vulnerable groups in our society. In particular, elder abuse and child abuse now seem to be firmly ingrained in public consciousness and in the consciousness of policy makers and legislators. However, as we saw this week with the discussion and debate around the publication of the Report into the death of Tracey Fay problems remain in the provision of adequate protection and in the investigation and reporting of the states failings. To see a blog post on this click here.
There is a feeling that the issue of abuse of persons with disabilities has not evolved to the same level of consciousness surrounding child and elder abuse. For example, last month it was reported that more than 500 official complaints (approx three a week) over the past two and a half years have been made regarding abuse and mistreatment of persons with disabilities in residential settings. To see a blog post on this click here. The reaction to the report in the Irish Times was not on the scale that one might have expected (or hoped) and the level of debate not as insightful. Following the report there was no perception of urgency in introducing mandatory standards and independent inspections of these services.
Article 16 of the United Nations Convention on the Rights of Persons with Disabilities places an obligation on the state to take the appropriate measures to protect persons with disabilities, both inside and outside their homes from all forms of exploitation, violence and abuse (including their gender based aspects). More state action is clearly needed to meet the standards set down in the Convention. People with intellectual disabilities have been referred to as “perfect victims” or “invisible victims” as they are taught compliance making them vulnerable to abuse and in many cases they may be unable to physically defend themselves from an attacker. A person with intellectual disability may also have difficulty in communicating the detail of crimes committed against them. There is no research in Ireland that has comprehensively examined the issue of the prevalence, investigation and prosecution of crimes committed against persons with disabilities. However, there is a perception and anecdotal evidence that the lack of adequate training for Gardaí in interviewing victims with intellectual disabilities may result in a low rate of prosecution. Similarly, persons with intellectual disabilities may not be perceived as competent witnesses and this perception may impact upon decisions to prosecute in these cases. Persons with intellectual disabilities have been subject to the most appalling examples of violent crime. There is a growing literature on the commission of hate crimes against persons with disabilities. For a discussion on this in Northern Ireland see: “Hate Crime against People with Disabilities: A baseline study of experiences in Northern Ireland” (Institute for Conflict Research, June 2009). A particularly appalling example of violence was uncovered last year in Corpus Christi Texas, where it merged that residents in a state school for the “mentally disabled” were forced by staff to fight fellow residents in night time styled “fight clubs” for over a year.
A decision in the High Court in December of last year highlights the difficulties faced in prosecuting crimes perpetrated against persons with disabilities. The High Court in O’D v DPP quashed the decision of a trial judge (Judge Patricia Ryan) in the Circuit Court to allow the alleged victims’ (two sisters with intellectual disability) to give their evidence via video-link. The applicant (the victims’ cousin) was charged with offences under the Criminal Justice (Sexual Offences) Act 1993. The DPP had been successful in securing an order for the alleged victims to give evidence under section 13 (1)(b) of the Criminal Evidence Act 1992. The applicant had opposed the granting of the order arguing that it would predetermine the issue of the mental impairment of the alleged victims (counsel for the defendant argued that the complainants were not mentally impaired within the meaning of the Criminal Justice (Sexual Offences) Act 1993). However, the DPP had made the application under section 13 (1)(b) as opposed to section 13 (1)(a), which provides for evidence to be given by persons with mental impairment via video-link. The DPP chose to make the order under 13 (1)(b) to avoid establishing that the complainants had a mental impairment within the meaning of the Criminal Justice (Sexual Offences) Act 1993. The High Court held that there needed to be a risk of unfairness that would result in a serious injustice before the decision to allow evidence via video-link could be permitted. The High Court also considered that the test applied by the Circuit Court judge in having regard to the relationship between the alleged victims and the accused, the mental assessments of the alleged victims and the unpleasantness of giving evidence was the incorrect test. The High Court quashed the order on the basis that there was a risk of an unfair trial that could not be addressed by directions of the trial judge or through statements from the prosecution. The matter was sent back to the Circuit Court for a rehearing of the application for the evidence to be given via video-link.
The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) is now driving a worldwide law reform programme on disability. We need to place a premium on acquiring the relevant comparative knowledge to assist in driving that process here in Ireland. However, abuse and disability remain underexplored here and there is a clear need to develop a research base that develops best practice in safeguarding the most vulnerable members of society and successfully prosecuting persons who perpetrate crimes against them. The NDA’s recent call for tenders to establish a methodology for a national study on the experiences of people with disabilities of physical, financial, sexual or emotional abuse or neglect is to be welcomed and will go some way in addressing the information gap and stimulating discussion. Similarly, the Law Reform Commission is set to build upon its body of work on vulnerable adults and the law. The Commission in its Third Programme of Law Reform 2008-2014 will begin a project entitled “Vulnerable Persons and the Criminal Justice System”, which will examine “[h]ow vulnerable persons, including those who are vulnerable arising from limited intellectual capacity, are dealt with in the criminal justice system in Ireland. The project will examine how vulnerable persons are treated before, during and after the court process.” This work will provide an opportunity to identify the deficiencies in the criminal justice system and identify international best practice and stimulate a much-needed discussion on abuse, disability and law reform.