The Convention on the Rights of Persons with Disabilities: Discrimination within anti-discrimination

By Magdalena Raykova.

The Convention on the Rights of Persons with Disabilities (CRPD) is the first UN human rights treaty to be adopted in the 21st century and is allegedly the fastest negotiated ever. It has also received unprecedented support from the international community upon its adoption. Furthermore, the document has been hailed as introducing a paradigm shift within the disability discourse, with the UN High Commissioner for Human Rights conceptualising the CRPD as ‘rejecting the view of persons with disabilities as objects of charity, medical treatment and social protection’ and as affirming persons with disability as ‘subjects of rights and active members of society’. Among the Convention’s aims are the promotion of autonomy, equal treatment, and anti-discrimination of persons with disabilities. Whilst I am a strong advocate of these aims, I believe that the formulation of Article 12 of the Convention is, in fact, contrary to the achievement of its stated aims. The following article will illustrate my belief by focusing on Article 12 of the CRPD in relation to the insanity defence and the Convention’s wider aim of countering discrimination.

Article 12 of the Convention contains five different sub-paragraphs. Briefly stated, the provision reaffirms the equal recognition before the law of persons with disabilities and further recognises that they ‘enjoy legal capacity on an equal basis with others in all aspects of life’. This means that persons with disabilities have, among others, the right to marry, to drive a vehicle, to vote in elections, or to be tried in criminal proceedings. It is in relation to the latter that this article is concerned with.

Article 12 has been interpreted as necessitating the abolition of the insanity defence in the criminal law of national jurisdictions as the defence is considered a discriminatory impediment that curtails the legal capacity of persons with disabilities. The defence itself exists on excusatory grounds and prohibits the founding of criminal responsibility where the defendant suffered from a mental disorder at the time of the criminal act either because the defendant lacked the intent or the cognitive ability to understand his actions. Thus, the defendant is acquitted but detained in a medical institution for treatment. Tina Minkowitz argues that the defence of insanity ‘deprives individuals of a clear determination of their responsibility in contravention of Article 12’. I disagree with her widely shared opinion. In particular, I believe that the formulation of Article 12 is disguised discrimination within an anti-discrimination provision. In necessitating the abolition of the insanity defence on the grounds that it strips persons with disability of their legal capacity, the claim ignores reality. In real- life, persons with disabilities do commit criminal offences unintentionally and irrationally because of a mental disorder they suffer from. The distinction between insanity and intent is frequently highlighted by quoting the false soldier example. In this case, an individual suffering from a mental disorder is falsely convinced that he is a soldier killing enemies. He understands that he is killing other people and thereby has the intent required for murder. However, he is not aware of his actions because he is acting according to an unrealistic and delusional motive. Stripping such an individual of the defence of insanity means that he will be convicted of a crime he either did not intend to do or did not realise he was committing on an equal basis with those people that did intend or realise the crime they were committing. Thus, failure to recognise the existence of a disability and its consequences is itself a form of discrimination. Furthermore, a strong indication exists that the incarceration of persons with disabilities results in disproportionate use of solitary confinement and broad violence against them in prisons. The experience has been well documented by Sweden which was the first Western jurisdiction to abolish the insanity defence in 1965. Nevertheless, decades later, law reformers are currently considering re-introducing an insanity defence into Sweden’s Criminal Code.

Overall, I am of the opinion that Article 12 of the CRPD represents an ideal of utopian aspirations that do not accurately represent reality. As such, caution should be exercised when the treaty is generally interpreted so that its provisions adequately promote the realisation of the Convention’s aims.

Photo credit to Rosemary Kayess, retrieved from 10 Years of the Convention on the Rights of Persons with Disabilities.

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