The right to live in this world and be treated with respect; The possibilities of criminal law
By Agnes van Wijnen, Holland
Legal options
To combat and end exclusion and discrimination towards disabled people, various legal approaches are open: constitutional law, civil law, criminal law and social welfare laws. Probably most used throughout the world, as Degener and Quinn concluded in their 2000 survey of International, Comparative and Regional Disability Law Reform [1] is the civil law approach. They identified 27 countries where a more or less comprehensive civil anti-discrimination law was enacted, mostly during the last decade of the 20th century. It goes without saying that of these the most comprehensive ones [2], which cover areas beside employment discrimination, tend to be the more influential in combating discrimination. That is, assuming they are solid and powerful in their enforcement mechanisms, and include the notion of "reasonable accommodation".
Much less used throughout the world is the criminal law approach. Hendriks in his 1996 research on legal aspects of disability discrimination in the Netherlands [3] identifies Canada, Finland and France as using this approach. Degener and Quinn cite France, Finland, Spain and Luxembourg in their survey. Also here one finds that most laws are concerned with discrimination in the field of employment and often also the provision of goods and services. Beside this option, Degener and Quinn note that some countries, for example Hong Kong which has adopted civil or social law, provide for criminal penalties within their civil or social laws in cases of incitement of hatred towards, serious contempt for or severe ridicule of persons with disabilities.
What is criminal law about? Hendriks in his before mentioned research describes it quite clearly:
"Criminal law encloses a catalogue of standards meant to prevent and retaliate violations of the legal order. This catalogue refers to demeanor which society considers unacceptable, immoral, harmful or dangerous to such an extent that one wants to make it punishable by law." [4]
Without meaning to argue against the usefulness and the immense importance of the civil law option to combat and end discrimination and exclusion, I think a criminal law approach is complementary to the other approaches and an opportunity is missed by not using it. In this article I hope to illustrate the need for and the potential of a criminal law approach.
Cases of contempt
In their day-to-day lives, disabled people are subjected to experiences where they are treated with contempt. In the Netherlands I have heard of many occasions where disabled people are confronted with contempt or hatred rather than respect.
When waiting at the counter of a supermarket to pay for her purchases a visibly disabled mother for instance was confronted with the comment from another customer that it was a shame that she had children. A disabled man driving through Amsterdam's Central Station was told that it was a pity that he was forgotten in World War II. A mother of two children with a disability was confronted with the opinion that these days it wasn't necessary to have children like that anymore, since the advancement of medical technology. The speaker considered it immoral both towards the children and towards society to deliver such a burden.
There have also been incidents reported where the violence isn't restricted to words. A woman with a visible disability standing in a tram was beaten by a stranger after he offered her a seat and she refused while briefly explaining she preferred to stand. A blind man standing near a staircase was beaten with his own cane and pushed off the stairs. A mentally disabled man, sitting in a bar, was forced by a group of other customers to swallow one after another alcoholic drink, far more than he wanted, until he got very sick.
These are unfortunately not the only cases of verbal or physical violence on the grounds of disability in the Netherlands. More shocking experiences could be presented, although it is at this point impossible to tell how extensive this violent behaviour is. It is particularly hard to acknowledge incidents of violence and hatred, and even more painful to tell others that you have experienced that kind of treatment. We probably face the proverbial tip of the iceberg.
In addition, there are the recurring debates in and outside of the scientific community about the possibilities of advanced medical technology related to prevention of the birth of disabled people. A couple of years ago the Dutch Council of the Disabled filed a complaint of contempt at a police station. The complaint was directed against a physicist and cultural philosopher named Rietdijk, who stated that it is necessary to restrict the growth of the population, and in that restrictive policy we should make use of "qualitative criteria". He advocated the prevention of the birth of babies with Down's syndrome and "other forms of physical or mental inferiority" in favour of people with high intelligence rates because the latter have more value for society as a whole. Furthermore, he stated that people who are physically or mentally inferior are sometimes a burden to themselves, to their parents most of the time and implicate a lot of extra financial worry to society. He stated he had no single moral hesitation to allow the abortion or even killing of these children.
The complaint of the Dutch Council was dismissed, because the statements were said to have been made in the context of a scientific discussion. Furthermore contempt or incitement of hatred towards disabled people is not (yet) part of the criminal law in the Netherlands.
Disability in Dutch criminal legislation
It sounds rather cynical but this last case in particular - even more because it was dismissed - proved to be of great strategic value for the lobbying efforts of the Dutch Council for criminal legislation against discrimination on the ground of disability. Dutch society generally thinks of itself as being very tolerant towards all kinds of minorities, all kinds of people. About disabled people, who are rarely viewed as a minority, the people in general think they are very well taken care of. Considering this, the message that disabled people are sometimes confronted with contempt, threats, hatred and violence is almost impossible or at the least very hard to get across to the general public, but also to policy makers and politicians. It simply wasn't heard because it didn't fit the picture. Finally this case, together with a list of other incidents of hate crimes, opened some eyes and ears.
Because of the complaint and all the publicity and public debate it generated, the Dutch Parliament passed a motion in which they asked the government to change the criminal law by adding disability to the articles against contempt, incitement of hatred, discrimination or violent behaviour because of a physical, mental or psychical disability. [5] In February 2002 the Dutch government responded with a less comprehensive proposal for alteration of the law, articles 137c-f. At the moment, this draft is under discussion in parliament.
Content of the draft
The draft proposes in article 137c to prohibit public contempt of disabled people, which implies that it is forbidden to offend one or call names (verbal, in writing or in a picture) because of one's physical, mental or psychical disability. This article could be used in cases where one is treated with complete disrespect like the before mentioned case where the disabled mother is told to be ashamed to have children. Or in the case of the man who was told that he should have been killed in World War II. [6]
The draft in art 137d prohibits incitement of hatred, which implies that it is forbidden to stimulate or call for hatred or violence against disabled people. This article in my view could be used when for example medical scientists, parents or parent organisations call for a policy of compulsory sterilisation of disabled people. Or in the case of the before mentioned philosopher, who stimulates - verbally in television programs and in writing - to kill unborn or born babies if they have a disability.
Thirdly, also in article 137d the draft prohibits violent behaviour against people on the ground of their disability. Here we can think of the example of the man who was forced to consume an enormous amount of various alcoholic drinks by a group of other customers.
In the draft article 137e the making public of expressions that can reasonably be expected to be offensive, inciting hatred or violent behaviour towards disabled people is punishable.
Lastly, article 137f prohibits the participating in or material or other support of activities meant to discriminate on the grounds of disability.
One last short point about the content of the proposal-- discrimination in social-economic relations is so far, in the current draft, not prohibited. This means that discrimination as mentioned above is not punishable when committed while exercising a profession. As you can understand there is a lot of opposition from the disability community towards this important omission. This opposition is supported by some members of Parliament who have amended the draft proposal.
Possibilities of Criminal Law
Verbal and physical violence are very humiliating, harmful acts that threaten the fundamental feeling of wellbeing deriving from being accepted the way you are. It threatens the self-esteem, power, independence and wellbeing of everybody to whom it is directed. Criminal law on its own will unfortunately not completely terminate disrespectful or violent behaviour towards disabled people. Neither will it always prevent people from discussing the right to life of people with disabilities. Sometimes, violence in whatever form may be found hard or even impossible to prove in a court case.
Nevertheless, with a prohibition on contempt, incitement of hatred and violence against disabled people in criminal law, at the very least a standard is set, a clear message is given. The message that, together as a society, we consider every form of violence or discrimination against disabled people unacceptable and immoral and will not tolerate it, nor leave it unsanctioned. The message that the right to life of disabled people is not a matter of discussion. Such a strong social message will contribute to a more respectful collective attitude towards disabled people.
Last but not least, criminal law articles against contempt and other violence mean that survivors of such behaviour may know that society is not indifferent to such behaviour. It means that disabled people have an instrument to stand up against disrespectful treatment. An instrument they can choose to use.
A criminal law which includes violence and discrimination against disabled people won't produce miracles, but can help to increase the chances to be treated with respect and be very useful to everybody who is looking for ways to stand up against hate crimes.
Notes
- Theresia Degener and Gerald Quinn, A Survey of International, Comparative and Regional Disability Law Reform, presented at From Principles to Practice, an International Disability Law and Policy Symposium, October 22-25 2000 organised by DREDF, Disability Rights, Education and Defense Fund
- See Degener and Quinn: Australia, Canada, Hong Kong, the Philippines, United Kingdom and United States of America
- See Aart Hendriks, Gehandicapt[en]Recht, een onderzoek naar de juridische aspecten van discriminatie van mensen met een handicap in Nederland, SDU 1996
- Aart Hendriks in Gehandicapt[en]Recht, SDU 1996 [Translation AvW]
- In Dutch law the articles it regards are Wetboek van Strafrecht 137c-g en 429quater.
- The Nazi regime led by Hitler started the mass murder campaign with experimenting on and killing of disabled people.
Agnes van Wijnen is senior consultant with Kantel Konsult, a small, headstrong company of disabled people working on empowerment, rights and independent living. See
www.kantel.nl
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