Senator Katherine Zappone spoke at the American University Seminar: “A conversation with Michael Bach, Senator Katherine Zappone and Professor Gerard Quinn about their disability work throughout the world" during her 3 day visit to Washington DC.
During her visit, Senator Zappone spoke at the US State Department Seminar on UN CRPD and met world leaders in the area of disability policy among others Judy Heuman, who is an internationally recognized leader in the disability community and a lifelong civil rights advocate for disadvantaged people and Senator Tomas Harkin, who introduced the Americans with Disabilities Act (ADA) in the Senate. This Act changed the landscape of America by requiring buildings and transportation to be wheelchair accessible, and to provide workplace accommodations for people with disabilities.
Senator Zappone also had meetings with Disability and LGBT rights directors from Open Society Foundation.
Read Senator Zappone's speech at the American University Seminar:
Equal Recognition before the Law
- UN CRPD Article 12 & Irish Constitution Article 40.1
I want to refer to a case-in-the-making that is collaboration for change between a lawmaker (myself) and an academic (Professor Quinn and his team). It too draws on the power of the UN CRPD to trigger change, this time at the domestic level of lawmaking in Ireland. This is a tough challenge for us because Ireland has a ‘dualist system’ whereby international law is not directly applicable domestically. It must first be translated into national legislation before the national courts can apply it.
This case is about Equal Recognition before the Law – as you are all aware it is the 12th Article of the UN CRPD and it is also a right guaranteed in the Irish Constitution, Article 40.1:
“All citizens shall, as human persons, be held equal before the law.”
There is a caveat, though, in our Constitution and it goes like this:
“This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.” (continuation of Article 40.1).
Effectively, this caveat has diluted the power of the basic constitutional right of equality before the law, because it means that persons can be treated differently which may sound like a good thing but the opposite has been the case thus far in Irish jurisprudence – namely that the courts can discriminate against those who are different if they find an appropriate reason to do so.
I think, however, that there exists potential in the ways that Article 12 of the UN CRPD has been interpreted by the UN Committee in its General Comment, to persuade Irish lawmakers to strengthen the Irish constitutional right to equality before the law. This would be an amazing feat, and it may have global significance.
Our new case or initiative centres on my publication of a bill to reform Irish sexual offences law to eliminate discrimination against people with disabilities and to ensure that people with disabilities have the same freedom to consent to sexual activity as people without disabilities. Professor Quinn and his team at the Centre for Disability Law and Policy provided the research for this bill. The Bill, entitled Criminal Law (Sexual Offences) (Amendment) Bill 2014, aims to reform Irish law to ensure respect for the sexual agency of people with mental impairment while also providing protection from sexual abuse. The Bill repeals the existing discriminatory law that criminalises sexual activity of people with mental impairments before marriage, and does not recognize that people with intellectual or learning disabilities can participate in loving sexual relationships. Our new bill does – and this is probably why it has been dubbed the #right to love bill.
Furthermore the bill, I think, links Article 19 and Article 12 of the Convention in its attempt to reform traditional legal capacity laws. The best way to describe this link is in Professor Quinn’s own words in the document he prepared to underpin the case for a new use of Structural Funds.
“Article 19 contains a very positive philosophy of independent living and being included in the community. It builds on a more general trend toward restoring voice and power to the individual to determine where s/he wishes to live and with whom.
In this sense it builds on Article 12 which requires a reform of traditional legal capacity laws to ensure that the wishes and preferences of the individual are predominant.” [Getting a Life: Executive Summary]
Those wishes or preferences must necessarily extend to familial and intimate relations. That is what our bill does. In order to do this, however, we have drafted law that breaks the traditional link between mental and legal capacity.
Furthermore it is a bill that has been inspired by the voices of people with disabilities in Ireland. Those voices are telling stories of loving relationships that are crushed or never even given the chance to develop because of stigma and prejudice against people with intellectual disability. Those voices are calling for the freedom to love and to express love on an equal basis with others.
The right to relationships and sexuality goes to the cores of what it means to be human.
Recently, self-advocates with intellectual disability have given poignant accounts of the effect of these laws on their lives and relationships through their own research (quoted in my explanatory memo for the bill) and the RTE documentary “Somebody to Love’ which captures so powerfully the artistry of the Blue Teapot Theatre Company in Galway.
It was these voices, these accounts that inspired me to take action and create this bill – you could say that in this case, art as well as advocacy has influenced politics and lawmaking.
And, in order to be true to “equal recognition before the law” I have produced, again with Professor Quinn and his team’s assistance, a ‘Summary in Every Day Language’ of the bill so that those whom it will most directly impact are provided with accessible language to understand it. I believe this is the first of its kind too in Ireland.
Returning to the bill itself, while there are three main parts to it, for our purposes this morning/afternoon I want to simply point out that:
a) it repeals the draconian law that currently resides on the Irish statute books (to which I have already referred);
b) it aims to provide protection from abuse for all individuals by introducing an offense of “abuse of dependence and trust” and
c) it creates a statutory definition of consent to sex – SO THAT – it is no longer necessary to apply a functional test of mental capacity to an individual in order to ascertain if s/he has been abused. That is, if they don’t have the mental capacity to understand, then of course they could not have consented to sexual intimacy. To break this link, we have provided a definition of ‘consent’ that respects the sexual agency of all actors while criminalizing sexual acts that are not agreed upon or understood by all parties. This provides a nuanced and meaningful definition of consent that is inclusive of people with disabilities. Indeed, it is in fact ‘disability-neutral.’ And it would be a test for all people for a criminal investigation.
All sections of the bill, read together, intend to ensure equality before the law. If non-disabled adults are not required by law to understand possible emotional or other consequences of sex, then it would be unjust to impose such a high level of understanding on persons with disabilities. Instead our bill has formulated a test for ‘consent’ and not ‘mental capacity.’
The bill is an attempt to translate the Convention, and its interpretation by the UN Committee, into Irish domestic law. The General Comment on Article 12 states:
Legal capacity and mental capacity are distinct concepts . . . Under Article 12 of the Convention, perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity.’
I have already brought this bill to the second stage of our legislative process and Government allowed it to pass to the next stage. I met with Government and their officials prior to this debate, and Ger’s team joined this meeting, in order to tease out the different sections of the bill. What Government said to us is this: they want to ensure that any new law – in this realm as well as the realm of assisted decision-making—will be compliant with the UN Convention. We are offering them a way to do this in Sexual Offences Law. We will await further work by Government on these issues before the bill can be read a third time in the autumn of 2014.