FREEDOM FROM EXPLOITATION, VIOLENCE AND ABUSE

Article 16 of the CRPD sets out the State’s obligation to ensure freedom from exploitation, violence and abuse for PWDs through undertaking appropriate legislative, administrative, social, educational and other measures, putting in place effective women and child focused legislation and policies, providing recovery, rehabilitation, enabling social reintegration of PWDs who are victims and finally, preventing the occurrence of and protecting PWDs from all forms of exploitation, violence and abuse, including their gender-based aspects.

Laws and Policies Promoting Disability Rights

Section 16 of the 2013 Disability Rights Act ensures the right of all disabled persons to equal protection under the law, access to justice, a fulfilling life and to develop. It expressly provides for a disabled person’s right to be free from violence and to live life in a healthy and secure environment.

Schedule 12 of the Act requires the State to train duty bearers of the justice system to ensure unrestricted access to justice to PWDs who are victims of violence, exploitation and torture, arrange health services, rehabilitate any disabled victims of sexual violence, take steps to arrange for safe custody for a victim of violence, and lastly, to take all necessary steps to ensure legal services for them.

The Legal Aid and Services Act, 2000 expressly secures the right to access to legal aid and services for the “poor insolvent, destitute, and otherwise incapacitated for socioeconomic reasons” [1]. Schedule 2 (2) of the National Legal Aid Services Rules specifically mention PWDs as eligible for legal aid.

The Evidence Act 1872 states that all persons are competent to testify; however it excludes all those prevented by a mental incapacity (i.e persons with intellectual disabilities) from understanding the questions put to him/her and giving rational answers to them. It enables any witness who has speech impairments to give his/her evidence in any other manner, i.e. in writing or by signs [2].

The Penal Code 1860 [3] and in particular Chapter XVI deals with offences against the person and Section 299 – 311 deals with offences from murder to death by negligence. Offences causing miscarriage to a pregnant woman and an unborn child is also dealt with under this Act. Bodily harm whether it is grievous or not are defined as an offence and are found in Section 319-338A. Other offences such as wrongful constraint, kidnapping, slavery and forced labour are all listed as punishable offences under this Act. Lastly, Rape is defined in Section 375 of the Act while the punishment for rape is given under Section 376. The DNA Act 2014 contains provisions that allows for the checking of evidence of rape and paternity checks.

The Code of Criminal Procedure 1898 is a procedural law containing Sections in Chapter VI, Section 339 B, Section 344 and Sections contained in Part VII that deals with summons of persons, trial in absentia, adjournment and appeals in criminal cases.

The Dowry Prohibition Act, 1980 prohibits and penalizes the giving and taking of dowry in all its forms by a fine of a maximum of Tk 5000, imprisonment of up to one year or both.

The Suppression of Violence against Women and Children Act 2000 deals with prosecution of perpetrators of certain forms of violence against women and children and provides redress and some victim protection. . The Act provides for compensation for the victim and offers remedial measures for negligence or willful faults by an investigating officerIt also provides for speedy investigation and trial of cases, and the creation of specific tribunals for every district town.

The Domestic Violence (Prevention and Protection) Act, 2010 provides remedies against physical, psychological, economic and sexual abuse, by persons who are, or have been, in a family relationship. It ensures access to shelter homes, medical and legal aid services for victims/survivors. Under this Act, Judicial Magistrates may make protection orders, residential orders, maintenance orders and safe custody orders, direct payment of compensation and penalise those breaching such orders by prison terms and fines. Protection orders restrain a respondent from committing any act of domestic violence, entering the victim’s place of employment or school and having any personal, written or any form of communication with the victim, residence and maintenance orders. Any person breaching a protection order may face up to six months’ imprisonment and up to two years in case of multiple offences. Paragraph 8 of

The National Women’s Development Policy, 2011 [4] is specifically dedicated to the development strategies that ought to be taken to prevent violence against women. It details the services that women facing abuse can get from Women Support Centers (WSCs), One Stop Crisis Centers (OCCs) currently in six divisional towns, including one stop health care facilities, legal services, police support, shelter and rehabilitation; psycho-social counseling services through the National Trauma Counseling Centre at the Department for Women Affairs ; the Victim Support Centers (VSCs) and Tribunals on Suppression of Violence against Women and Children across the country.[5]

Limits and Gaps of the Law

Non-compliance with laws on protection against violence against persons is rife. Disabled people also lack awareness of available legal protections or access to services. In general, laws do not address the specific needs of disabled people. Training programmes for justice sector or law enforcement officials do not address how to ensure or extend legal protection to people with disabilities.

Disabled persons who are victims of violence (especially women) settle for alternative dispute resolution even in very serious cases, and where the law does not permit such settlements [6]. Strict implementation of Schedule 5 (Accessibility), 6, (Sharing Information and Communication & Information Technology), 7 (Mobility) and Schedule 12 of the 2013 Act which covers aspects related to Freedom of Violence, Access to Justice and Legal Aid, would go some way to change the situation.

Non-implementation of the Code of Criminal Procedure 1898 (Sections in Chapter VI, Section 339 B, Section 344 and Sections contained in Part VII) that deals with summons of persons, trial in absentia, adjournment and appeals in criminal cases leads to delays in criminal trials that acts as a barrier to justice for PWDs.

Under Section 36 of the 2013 Act, PWDs facing harassment or discrimination, are entitled to file complaints against any discrimination. However, Section 36 is not in force, as no order to this effect has yet been published in the official gazette (see Section 1 of the Act).

Paragraph 8 of the National Women’s Development Policy 2011 makes no express reference to women with disabilities [7]. However, it identifies the gaps related to extra-judicial punishment carried out in the local level and the lack of adequate forensic facilities to investigate the cases of abuse of women. The 2011 policy reported about a National DNA Laboratory and 5 divisional DNA Screening Lab under the Ministry of Women and Children Affairs who are assisting in identifying the offenders. Implementation of Section 14 of the newly enacted DNA Act, 2014 [8] will ensure that more DNA Labs are established and the quality of such tests can be ensured by implementing Section 15 of the Act.

Moreover, difficulties surrounding giving evidence in courts by the intellectually disabled is made difficult by Section 118 of the Evidence Act, 1872 which prevents evidence to be accepted from those who are incompetent to testify due to being unable to comprehend the questions asked during the trail process. This contravenes Articles 5 (2), 12 (2) and 16 (5) of the CRPD which requires the State to provide equal protection of law to all human beings. There is also a lack of DNA testing labs which contributes to the problems related to the availability of evidence in rape cases especially.

Survey Findings

People with disabilities are not only neglected in society but are also regularly subject to exploitation, violence and abuse. 20% of the PWDs surveyed felt that they fell victim to such degrading treatment due to their disability.

Case Study 1 : harassment of students with disabilities in educational institutions On 12 February 2012, BLAST, along with Shankar Chakraborty and others, filed a writ challenging failure of the concerned respondents to take timely action to prevent the continued harassment and subsequent suicide of Modhushudhon Chokrabarty, the son of the petitioner, and a student of the Shaheed Ziaur Rahman Medical College, Bogra. The petitioners argued that the concerned respondents failed to comply with their statutory and constitutional duties to put in place measures to prevent harassment of students with disabilities in educational institutions. The Court issued a Rule on the Ministry of Education, the concerned College and others. The matter is pending for hearing [9].

Disabled women were found to be more prone to violence due to their vulnerability stemming from their gender and disability.

Fig1_Freedom from Violence, Exploitation etcFig 1: Do you feel disabled women and children face violence, exploitation and torture in a larger scale than non-disabled women and children?

Violence, exploitation and torture against women and children in the home:[10] Husbands of disabled women more than often[11]abandoned them to avoid paying maintenance. Married women with disabilities reported high levels of physical abuse, sexual and emotional abuse (especially where their families coerced them into marriage by paying of dowry to a husband who was forced by his own family to marry for the dowry). In most cases, they are compelled under duress to give their inheritance to their husbands. In many cases, husbands remarry without taking prior permission from their disabled wives. Disabled women, like other women, generally do not take any action, given the lack of social or economic alternatives to the family, for fear of divorce or fear of being a burden again to their own family.

Non-married disabled women also face mental, physical and sexual abuse at home from family members and neighbors. Families and neighbours of persons with disabilities more than often fail to provide them the safety, security and support that they need. The worst sufferers are disabled women who have been subject to sexual harassment and violence find themselves further victimized as family members confine them indoors.

Child Marriage among girls with disabilities: Girls with disabilities are prone to being victims of child marriages. Although the Union Parishad Chairman has a legal duty to prevent child marriages, respondents felt that they do not take action for fear of losing votes from parents/family members involved in such cases.

Fig2_Freedom from Violence, Exploitation etcFig 2: Is the rate of child marriages among girls with disabilities higher than non-disabled girls?

General barriers to access to justice [12]: PWDs face various barriers to access to justice. Courts are reluctant to take evidence from PWDs and in cases where they do, problems arise from lack of interpreters making it impossible for those hearing and speaking impairments to present evidence. Visually impaired and deaf-blind women have no real legal protection against sexual violence as giving evidence in court is extremely challenging for them. WWD victims, especially those who are victims of rape, may be forced to marry the perpetrator to preserve their own reputation and “family honour”. 64% responses from the FGD survey showed that the investigation officer appointed for interviewing disabled women or children in an investigation of exploitation, violence and abuse, did not carry out that interview. 59% of respondents felt the investigation officer was reluctant to do so due to neglect for the disabled woman/child, and 29% felt the investigation officer was unable to interview disabled women/children with speech and hearing difficulties due to communication barriers.

Rashida Manjoo in her Lecture stated that for WWDs: “The challenges related to investigation, prosecution and punishment of perpetrators for acts of violence against women due to corruption, lack of coordinated criminal justice response; lack of expertise and adequate mechanisms to conduct credible investigations; lack of comprehensive redress mechanisms; and limited understanding of the root causes and consequences of violence against women all acts as barriers to justice for disabled victims” [13].

Delays in trial: Accumulation of appeals, adjournments and the general lack of logistics and human resources are the main factors causing delays in trials preventing PWDs from achieving remedies [14].

Fig3_Freedom from Violence, Exploitation etcFig 3: Do disabled women and children who have experienced violence, exploitation and torture face any problems in availing legal assistance?
Fig4_Freedom from Violence, Exploitation etcpngFig 4: State the problems faced by surveyed PWDs whilst seeking general legal assistance in the event of their personal rights being violated.

Settlement outside Court as a barrier to access to justice: The barriers to PWDs availing legal assistance lead to most disputes being settled out of court. The survey findings revealed that in 61 % of the cases, the dispute between a PWD (facing violence, exploitation or torture) and the perpetrators was settled through a shalish (traditional dispute resolution). Among the various reasons given by the surveyed PWDs for choosing out of court settlements, 22 % of the surveyed respondents quoted pressure from elite members of the society as a reason while 27 % of the respondents acknowledged financial situation of the family of the victim to have played a role in reaching for such settlements in return for a monetary compensation of some amount. 14% of the respondents cited ‘fear of losing family honour and respect’ as a reason for settling disputes in this way. Community pressure and stigma, the lack of responsiveness by the justice system, pressure to withdraw complaints by local police and the length of proceedings also acts as contributing factors [15].

Fig5_Freedom from Violence, Exploitation etcFigure 5: For PWDs facing exploitation, violence and torture, the dispute between them and the perpetrators is usually settled through a shalish (traditional dispute resolution): is this statement correct?

Lack of Counselling Services for victims of violence, exploitation and abuse: [16] None of the laws on violence, exploitation and abuse expressly refer to people with disabilities, nor have any rules or guidelines been framed in this regard.

Fig6_Freedom from Violence, Exploitation etcFig 6: What counselling services are available to women and girl children (with speech and hearing disabilities) who have faced violence?

There are no dedicated counselling services for children who are victims of violence, abuse and exploitation. 68 % of persons with disabilities surveyed said that children who are victims are kept with adults in Victim Support Centers (VSC).

Recommendations

Address lack of knowledge among PWDs about legal protection against violence by implementing Schedule 15 (ka) of the 2013 Act which requires the State to raise awareness on issues that will enable PWDs to be more self-sufficient.

Address protection of disabled women and girls from violence by implementation of the various preventative laws discussed above (The Suppression of Violence against Women and Children Act 2000, Domestic Violence Act 2010, The Child Marriage Restraint Act, 1929 among others).

Engage Union Chairmen to play an active part in preventing child marriage and domestic violence.

Enable victims with intellectual disabilities to give evidence, by amending Section 118 of the Evidence Act, 1872 as it currently prevents such PWDs from doing so. Implementation of Schedule 12 of the Disability Rights Act will enable such PWDs to present their evidence in a more disabled friendly court environment.

Establish adequate number of DNA Labs, under Section 14 of the DNA Act 2014

Recognize the need for and provide dedicated counselling services to disabled victims of violence by express reference in the National Psycho-Social Counselling Policy 2015 ((paragraph 9.5) [17].

Remove physical barriers and ensure disabled friendly court environments through implementation of Schedule 5 (Accessibility); 6 (Mobility) and 12 (Freedom from Violence, Access to Justice and Legal Aid) of the 2013 Act to make all public places accessible (especially courts, police stations, victim support centers, one stop crisis centers).Disabled friendly washrooms/toilets in all places including jails can be ensured through compliance with Rules 5 (5) and 13 of the Building Construction Rules, 1996 and Part 3 of the Bangladesh National Building Code 2008 containing disabled friendly construction rules and guidelines. Implementation of Schedule 12 (gha) of the 2013 Disabilities Act and Chapter XXV of the CrPC would overcome the practical barriers that PWDs face in relation to participation in trials.

Protect disabled victims by reinforcing Schedule 12 of the Disability Rights Act and also women and children who are disabled and victims of violence by compliance with Section 31 of the Suppression of Violence against Women and Children Act 2000.

Amend or enact laws to ensure victim and witness protection. Alternatively, amend the 2013 Disabilities Act to address priority protection for disabled victims and witnesses in all legal proceedings where required.

Amend Section 544 CrPC to ensure compensation and costs for witnesses (for travelling, accommodation) from State funded allowances.

Amend Section 545 CrPC to address any injury to a PWD during witness-duty (either through compensation or by providing free medical services in any private or public hospital or clinic at the expense of the office with full security protection).

Fast-Track cases of violence and exploitation against PWDs through strict compliance of provisions on summons, trial in absentia, adjournment and appeals (Sections in Chapter VI, Section 339 B, Section 344 and Sections contained in Part VII respectively of the CrPC. Case Coordination Committees (CCC) operational in many districts, and now addressing issues of indigent prisoners only, also prioritize cases involving violence against PWDs and CCCs can therefore be used to fast track such cases.

 

[1] Section 2 (a), Rights of Persons with Disabilities Act, 2013.
[2] Section 118, Evidence Act, 1872.
[3] The Penal Code 1860: http://bdlaws.minlaw.gov.bd/pdf_part.php?id=11
[4] National Women Development Policy 2011 at http://mowca.portal.gov.bd/sites/default/files/ files/mowca.portal.gov.bd/policies/64238d39_ 0ecd_4a56_b00c_b834cc54f88d/National-Women-Policy-2011English.pdf
[5] National Women Development Policy 2011 at http://mowca.portal.gov.bd/sites/default/files/files/mowca.portal.gov.bd/ policies/64238d39_0ecd_4a56_b00c_b834cc54f88d/National-Women-Policy-2011English.pdf
[6] Lecture by Rashida Manjoo, UN Special Rapporteur on Violence against Women, its causes and consequences, Dhaka University, YEAR: http://www.blast.org.bd/content/pressrelease/summery-note-rashida-manjoo.pdf
[7] The National Women Development Policy 2011 only addresses women with disabilities in Paragraph 39 as follows:

39. Special Program for the Disabled Women :

39.1. To ensure rights to recognition and to live with honor and dignity according to UN disadvantage right convention.

39.2. To have the disabled women unified with the mainstream society and ensuring their active participation in all the areas of life including education. To give importance to the differentiation of disability in aspect of education.

39.3. To consider special type of education in only those areas where they could not be mainstreamed for reasons obvious.

39.4. To undertake appropriate institutional program for education, treatment, training and rehabilitation of the disabled women.

39.5. To undertake program to prevent disability and its determination and extending special co-operation to their families for taking care and growth of the disabled women.

39.6. To make the framework, facilities and services accessible to all so that on women only because of disability are not deprived of any kind of rights, facilities and services endowed under the National Women Policy.

Website: http://mowca.portal.gov.bd/sites/default/files/files/mowca.portal.gov.bd/policies/ 64238d39_0ecd_4a56_b00c_b834cc54f88d/National-Women-Policy-2011English.pdf

[8] DNA Act 2014.http://bdlaws.minlaw.gov.bd/bangla_pdf_part.php?id=1151&vol=44&search=2014
[9] Shankar Chakraborty and others vs. Govt. of Bangladesh and others, Writ Petition No: 1576 of 2012.
[10] Consolidated Report 7 FGDs, 1 October 2013, page 11 (on file).
[11] {Recheck reference Hossain et al}
[12] Consolidated Report 7 FGDs, 1 October 2013 at page 11 (on file).
[13] Lecture by Rashida Manjoo, UN Special Rapporteur on Violence against Women, its causes and consequences, Dhaka University, 2013 http://www.blast.org.bd/content/pressrelease/summery-note-rashida-manjoo.pdf
[14] Hasan, Sk.M.Tofayel. ‘Critical Scanning on Civil Litigation: Bangladesh Perspective’. ASA University Review 7.2 (2013): http://www.asaub.edu.bd/data/asaubreview/v7n2sl11.pdf
[15] Lecture by Rashida Manjoo, UN Special Rapporteur on Violence against Women, its causes and consequences, Dhaka University, 2013 http://www.blast.org.bd/content/pressrelease/summery-note-rashida-manjoo.pdf
[16] Consolidated Report 7 FGDs, 1 October 2013, page 11 (on file).
[17] National Psycho-Social Counselling Policy 2015 (Draft). Website: http://mowca.portal.gov.bd/sites/default/files/files/mowca.portal.gov.bd /policies/3c51f31a_200b_459a_89f7_9e8e596b1090/National% 20 Psychosocial%20Counseling%20Policy%202015%20(draft).pdf

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