Submission to the UN Analytical Study on Violence against Women With Disabilities - DECEMBER 2011
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w w w. w wda.or g.au Women With Disabilities Australia (WWDA) Submission to the UN Analytical Study on Violence against Women With Disabilities DECEMBER 2011
publishing information S u b m i ssion to the Preparation Phase of the U N A n alytical Study on Violence against Wo m e n and G irls with Disabilities ( A /H R C/RES/17/11) By Carolyn Fro h m a d e r fo r Wo m e n W i t h D i s a b i l i t i e s A u s t r a l i a (WWDA) © Women W i t h D i s a b i l i t i e s A u s t r a l i a ( W W DA ) D e ce m b e r 2 0 1 1 T his work i s co p y r i g h t . A p a r t f ro m a n y u s e a s p e r m i t t e d u n d e r the Copyri g h t A c t 1 9 6 8, n o p a r t m a y b e re p ro d u ce d w i t h o u t written pe r m i s s i o n f ro m Wo m e n W i t h D i s a b i l i t i e s A u s t r a l i a (WWDA). A l l p o s s i b l e c a re h a s b e e n t a ke n i n t h e p re p a r at i o n of the inform at i o n co n t a i n e d i n t h i s d o c u m e n t . W W DA d i s c l a i m s any liabilit y fo r t h e a cc u r a c y a n d s u f f i c i e n c y of t h e i nfo r m at i o n and under n o c i rc u m s t a n ce s s h a l l b e l i a b l e i n n e g l i g e n ce o r otherwise i n o r a r i s i n g o u t of t h e p re p ar at i o n o r s u p p l y of a n y of the inform at i o n afo re s a i d . contact details Women W i t h D i s a b i l i t i e s A u s t r a l i a ( W W DA ) PO Box 60 5, Ro s n y P a r k 7 0 1 8 TA S M A NI A , AU STR ALIA Ph: +61 3 6 24 4 8 2 8 8 Fa x : + 6 1 3 6 24 4 8 25 5 Email: ww d a @ w w d a . o rg . a u Web: www.w w d a . o rg . a u WWDA on Fa ce b o o k : http://www. f a ce b o o k . co m / p a g e s / Wo m e n - W i t h - D i s a b i l i t i e s - Australia-W W DA / 2 0 2 0 8 1 3 9 3 1 5 3 8 9 4 Winner, Nat i o n a l Hu m a n R i g h t s Aw a rd 2 0 0 1 Winner, Nat i o n a l V i o l e n ce P re v e n t i o n Aw a rd 1 9 9 9 Winner, Ta s m a n i a n Wo m e n ’ s S afe t y Aw a rd 2 0 0 8 Certificate of M e r i t , A u s t r a l i a n C r i m e & V i o l e n ce P re v e n t i o n Awards 20 0 8 Nominee, Fre n c h Re p u b l i c ’ s H u m a n R i g h t s P r i ze 2 0 0 3 Nominee, U N M i l l e n n i u m Pe a ce P r i ze fo r Wo m e n 2 0 0 0
contents
I n t ro d u c t ion 4
D at a a n d statistics 6
Le g i s l at i on and policies 14
P re v e n t i o n and protection 23
Pro s e c u t i on and punishment 33
Re co v e r y, rehabilitation and social reintegration 40
A p p e n d i x 1: Projects on violence against women
w i t h d i s a bilities 1990-2010 42
A p p e n d i x 2: Definitions of ‘family violence’ in legislation 48
Endnotes 67
Submission to the UN Analytical Study on Violence against Women With Disabilities DEC2011 3INTRODUCTION
1. Women With Disabilities Australia (WWDA)1 is the peak
non-government organisation (NGO) for women with
all types of disabilities in Australia. WWDA is run by
women with disabilities, for women with disabilities,
and represents more than 2 million disabled women in
Australia. WWDA’s work is grounded in a rights based
framework which links gender and disability issues
to a full range of civil, political, economic, social and
cultural rights. Promoting the rights of women with
disabilities to freedom from violence, exploitation and
abuse and to freedom from torture or cruel, inhuman
or degrading treatment are key policy priorities of
WWDA.2
2. Australia is a country that prides itself on ideals which
include a fair go for everyone, freedom and dignity of
the individual, equality of men and women, equality
of opportunity, freedom from discrimination, and the
right of its citizens to participate fully in the economic,
political and social life of the nation.3 However, these
entitlements remain a distant goal for women with
disabilities. In Australia today, women with disabilities
are not given a ‘fair go’, they are denied the most
fundamental rights and freedoms, they are not treated
with dignity and respect, they remain profoundly
more disadvantaged than their male counterparts; are
systematically denied opportunity in every aspect of
society; experience multiple forms of discrimination,
and widespread, serious violation of their human
rights. They remain largely ignored in national policies
and laws, and their issues and needs are often
overlooked within broader government programs and
services. Negative stereotypes from both a gender and
disability perspective further compound the exclusion
of women with disabilities from support services,
social and economic opportunities and participation in
civic and community life. The deep-rooted exclusion
experienced by women with disabilities in Australia
continues unabated due in part to the dearth of
information available on its extent or impact, and the
apathy of successive Governments in acknowledging
the need for such information.43. Violence against women with disabilities remains a key the physical and psychological recovery and social
factor that undermines the ability of disabled women reintegration of victims.
to participate as full and equal citizens in Australian
society. Violence against women with disabilities is 5. The obligation to respect, protect and fulfil women
an intersectional category dealing with both gender- with disabilities’ right to freedom from violence,
based and disability-based violence. The confluence exploitation and abuse and to freedom from torture
of these two factors results in an extremely high and other cruel, inhuman or degrading treatment or
risk of violence against women with disabilities.5 punishment, clearly requires Australian Governments
6
In Australia, women with disabilities experience to do much more than merely abstain from taking
high levels of domestic/family violence and sexual measures which might have a negative impact on
assault, and have high levels of unmet needs in women with disabilities. The obligation in the case
terms of access to domestic violence, sexual assault of women and girls with disabilities is to take positive
and related community support services. It is now action to reduce structural disadvantages and to give
widely acknowledged that compared to non-disabled appropriate preferential treatment to women with
women, women with disabilities are at greater risk disabilities in order to ensure that they enjoy all human
of severe forms of intimate partner violence; they rights. This invariably means that additional resources
experience violence at significantly higher rates, more will need to be made available for this purpose and
frequently, for longer, in more ways, and by more that a wide range of specially tailored measures will be
perpetrators; they have considerably fewer pathways required.12
to safety, and are less likely to report experiences 6. This Submission from Women With Disabilities
of violence - yet programs and services for this Australia (WWDA) to the preparation phase of the UN
group either do not exist or are extremely limited. In Analytical Study on Violence Against Women and
Australia, responses to violence against women with Girls with Disabilities, aims to provide an overview
disabilities have traditionally been characterised by of the legislation, regulatory frameworks, policy,
limited recognition by governments and the service administrative procedures, services and support
sector of the nature and extent of the problem; available within Australia to prevent and address
inadequate research; incomplete or partial response violence against women and girls with disabilities.
structures, and scarce resources to support advocacy WWDA acknowledges that, due to time and resource
in the area.7 8 9 constraints, this Paper does not provide a complete
4. The duty of Governments to respect, protect, fulfil and detailed analysis of all mechanisms and programs
and promote human rights with regard to violence across Australia’s eight States and Territories. However,
against women includes the responsibility to prevent, the information provided in this Paper does clearly
investigate and prosecute all forms of, and protect all demonstrate that there have been, and remain,
women from such violence and to hold perpetrators significant systemic failures in legislation, regulatory
accountable.10 The responsibility of the Australian frameworks, policy, administrative procedures,
Government to address violence against women availability and accessibility of services and support,
and girls with disabilities is explicitly delineated in a to prevent and address the epidemic that is violence
number of the human rights treaties it has ratified, against women and girls with disabilities. Underlying
particularly the Convention on the Rights of Persons these systemic failures is an entrenched culture
with Disabilities (CRPD).11 Article 16 of the CRPD throughout all levels of Australian society that
(Freedom from exploitation, violence and abuse) devalues, stereotypes and discriminates against
requires states to ensure that people with disabilities women and girls with disabilities, and invariably
are not subject to any form of exploitation, violence perpetuates and legitimises not only the multiple
or abuse; requires states to protect women, children forms of violence perpetrated against them, but also
and older people with disabilities from gender and age the failure of governments to recognise and take
aggravated exploitation, violence and abuse; requires action on the issue.
states to institute measures to ensure the detection,
investigation and prosecution of exploitation, abuse
and neglect of people with disabilities and to promote
Submission to the UN Analytical Study on Violence against Women With Disabilities DEC2011 5DATA AND STATISTICS
Have studies/research been conducted on
the prevalence, nature, causes and impact
of violence against women and girls with
disabilities in different settings (family/home,
work-place, medical institutions, schools,
etc.?). What forms of disability and violence
do they cover?
7. To date, there have been no national studies or
research conducted to establish the prevalence,
extent, nature, causes and impact of on violence
against women and girls with disabilities in different
settings. There is no data collection in Australia on
violence against women with disabilities.
8. For more than a decade, WWDA has called on
successive Australian Governments to commission
and resource nationwide research to ascertain the
prevalence, extent, nature, causes and impact of
violence against women with disabilities.13 14 15The
need for such research has been widely documented
across a range of sectors for a number of years. 16 17
18 19
The critical need for Governments to accelerate
their efforts in research and data collection in relation
to violence against women with disabilities has also
recently been re-iterated by the United Nations
Human Rights Council.20
9. The Australian Government concedes that violence
against women with disabilities in Australia is
‘widespread’.21 As recently as 24 October 2011, the
Federal Minister for the Status of Women, Kate
Ellis acknowledged that women with disabilities,
particularly intellectual disabilities, are extraordinarily
vulnerable to violence and abuse. She stated:
“We don’t know the full extent, but we do
know (women with disabilities) are massively
over-represented in the statistics of women
in Australia who are subjected to violence.
We know that women with disabilities,
particularly intellectual disabilities, can beextraordinarily vulnerable and we also know further qualitative studies to expand on the Survey
there are issues around reporting and around results, including information about women with
knowing where to turn for assistance and disabilities. In response, the Government declined
how to avoid those sorts of relationships.” 22 to act on this recommendation, suggesting that a
sample size of 12,000 women ‘may still be too small
10. The most immediate and apparent finding in to gain accurate prevalence estimates of women with
researching and analysing violence against women a disability who have also experienced violence’.32 A
with disabilities in Australia, is the limited information further reason given related to survey methodology:
available on any aspect of the issue. The neglect in ‘as women are most at risk of experiencing violence
research of women with disabilities generally has from someone known to them, we are aware of
been highlighted by the United Nations Committee the sensitivities involved in surveying women with
on the Elimination of All forms of Discrimination disabilities about their experience(s) of violence in the
Against Women (CEDAW), in both its 2006 and presence of a carer, who in some circumstances may
2010 assessments of the Australian Government’s be the perpetrator of violence’ (Flanagan 2004).33
implementation of the Convention.23 24 In its 2010
Concluding Comments, the CEDAW Committee 13. The next national Personal Safety Survey is due
made very strong recommendations regarding the to be conducted in 2012, although this is yet
need for urgent action by Australian governments in to be confirmed. The potential 2012 PSS would
relation to women with disabilities, including the need build the evidence base on the nature, extent and
to: characteristics of women’s and men’s experiences
of violence in Australia. Although the next PSS will
• Undertake a comprehensive assessment of the contain a disability module, the Australian Bureau of
situation of women with disabilities in Australia; Statistics (ABS) has acknowledged that ‘it is likely that
• Address the abuse and violence experienced by estimates for people with disabilities will be under-
women with disabilities living in institutions or estimated’.34 Limitations of the 2012 PSS in relation
supported accommodation; to capturing data on violence against women with
disabilities include:
• Adopt urgent measures to ensure that women
with disabilities are better represented in decision- • the PSS is conducted via personal interview in
making and leadership positions; the respondent’s home, with a small number of
interviews occurring by telephone. Eliciting good
• Enact national legislation prohibiting forced data about experiences of violence depends
sterilisation of women and girls with disabilities. on the respondent clearly understanding the
questions being asked, their ability to respond
11. The main indicators available to date about violence and the interview being able to occur in private.
against women in Australia, come from the 1996 People with disabilities who do not meet these
Australian Bureau of Statistics (ABS) Women’s Safety criteria will be ‘un-selected’ from the PSS.
Survey25 which gathered information about women’s
experiences of violence, and the 2005 ABS Personal • the PSS will not include residents of special
Safety Survey (PSS),26 which collected information dwellings (eg: boarding houses, institutions).
about both women’s and men’s experiences of
violence. Both the ABS Surveys (1996, 2005) have 14. A potential source of some statistical data on violence
been criticised for their limitations in providing a against women with disabilities may be available
sufficiently comprehensive picture of violence against through the National Disability Abuse and Neglect
women.27 28 29 Hotline35 (the ‘Hotline’). The Hotline is an Australia-
wide telephone hotline for reporting abuse and
12. In 2004, WWDA, along with several other national neglect of people with disabilities, is fully funded
disability organisations, wrote to the [then] Australian by the Australian Government,36 and operated on
Government strongly advocating the need for the behalf of the Government by a national peak disability
2005 PSS to include data collection on violence organisation. Its primary target group are people with
against women with disabilities, 30 31 and calling for disabilities who use Commonwealth, State or Territory
Submission to the UN Analytical Study on Violence against Women With Disabilities DEC2011 7DATA AND STATISTICS
provided or funded disability services. Notifications of 17. In 1996, the New South Wales (NSW) Government
abuse and neglect are referred to relevant complaint funded a small research project to investigate access
bodies for their resolution. Statistical and other data for women with disabilities to existing sexual assault
from the Hotline is provided to the Government, services. Interviews with women with disabilities,
however, none of this data or information is available carers and organisations identified key issues such
to the public. WWDA understands that the data as lack of understanding by service providers of the
is disaggregated by gender, however it is unclear intersections between gender, disability and abuse;
how the Australian Government uses the data it the discriminatory culture within services; lack of
collects. There is no legislative base for the Hotline information for women with disabilities about abuse;
and it therefore has no statutory functions, powers and lack of access to services. Recommendations
and immunities.37 It has no investigative powers, no centred on empowerment, access to quality services
power to compel any other agency to investigate a and advocacy.41 There is no information available
complaint, and no power to formally review complaint on whether or how these recommendations were
investigation processes and outcomes. The Hotline implemented.
does not have any systemic investigation, inquiry or
review powers, and is unable to initiate action at its 18. In May 2008, the Australian Government established
own motion.38 There is a clear lack of transparency the National Council to Reduce Violence against
relating to outcomes of notifications; there are a Women and their Children (the Council). The
number of service types which are excluded from Council’s main role was to develop a national plan
its mandate (such as licenced boarding houses), to reduce the incidence and the impact of violence
and definitions which set the scope of its work fail against women and their children. In March 2009,
to incorporate a domestic context.39 Although the the Council released Time for Action: The National
Hotline offers potential as a mechanism in detecting, Council’s Plan for Australia to Reduce Violence
reporting and responding to violence against women against Women and their Children, 2009–2021,42
with disabilities, in its current form it is severely limited. which contained the Council’s recommendations for
a National Plan to Reduce Violence against Women to
be developed and agreed by the Council of Australian
Governments (COAG) and to be released in 2010.
Government Research Initiatives
19. Time for Action identified six key outcome areas43,
15. There have been minimal research studies initiated by proposed strategies and actions in each area and
Australian Governments on violence against women identified 20 high-priority actions that required an
with disabilities. urgent response. One of these ‘high-priority actions’
16. In 1990, the Australian Government established included developing a national response to ‘audit crisis
a National Committee on Violence Against accommodation services for their accessibility for all
Women (NCVAW) to ‘initiate research, coordinate women’.44 However, to date, there is no evidence that
community education and act as a forum for this has occurred, and it appears that it is no longer
national consideration of legal, policy and program considered a priority by the Government. This is
issues’.40 The NCVAW commissioned a small project despite many years of WWDA and other stakeholders
to examine the effectiveness of service delivery to urging the Australian Government to commission
women with disabilities who experience violence, a national audit of crisis accommodation services
representing an acknowledgment by the Australian (including women’s refuges) to determine their levels
Government that violence against women with of accessibility and safety for women with disabilities.
disabilities was an issue. The study looked at access 20. The urgent need for improvement in data collection
to police, legal and support services and used a was also identified in Time for Action. A key strategy
qualitative framework to interview women with included ‘build[ing] the evidence base’, noting that:
disabilities, service providers, relevant government
agencies and non-government organisations. The data relating to violence against women
NCVAW was wound up in 1993, with none of the and their children in Australia is poor. Data
study’s recommendations being implemented. on services sought by, and provided to,
.
8 Women With Disabilities AUSTRALIADATA AND STATISTICS
victims is not readily available, and the way and their Children 2010-2022,48 which consists of four
in which information is reported is generally three-year Action Plans. The First Action Plan (2010–
inconsistent and does not allow for a 2013) includes two key ‘immediate national initiatives’
comprehensive understanding of violence specifically focused on women with disabilities. They
against women.45 are to:
21. Time for Action also found that where data exists, • Investigate and promote ways to improve access
there are many limitations, including for example: and responses to services for women with
disabilities.
• Under-reporting, particularly given sample
populations of large surveys often do not reach • Support better service delivery for children,
the most vulnerable groups of women; Indigenous women and women with disabilities
through the development of new evidence based
• There is an over-reliance on data not supported approaches where existing policy and service
by in-depth, detailed research that would provide responses have proved to be inadequate.49
a better understanding of the relevance of
different social, physical, cultural, geographical
and economic contexts.46
Australian Research
22. In November 2009, the Australian Government
released the findings of the National Community 24. The limited and fragmented work undertaken by
Attitudes towards Violence against Women Survey Governments to date, is supplemented by a small
2009.47 For the first time in this survey series, a limited number of research studies into violence against
number of questions on violence against women with women with disabilities in Australia.
disabilities were included. Some key findings from the 25. Examples of the work undertaken include an
survey about women with disabilities included: examination of the experiences of women while
• community awareness of violence against women inpatients in a psychiatric hospital. This 1997 NSW
with disabilities was very poor; study uncovered the occurrence of sexual abuse and
made evident the failure of the system to respond to
• few respondents recognised the greater that abuse.50 51 In another NSW study, identification
vulnerability of women with disabilities to of the barriers facing women with an intellectual
violence; disability when making a statement about sexual
assault to police was undertaken by interviewing
• only 9% of respondents agreed that ‘women sexual assault workers and police officers. While the
with intellectual disabilities are more likely to study found that women with intellectual disabilities
experience violence than other women’. 69% of face significant barriers in successfully making
respondents disagreed with the statement; statements to police following a sexual assault, the
• 16% agreed that ‘women with physical disabilities omission of the views of the women themselves was
are more likely to experience domestic violence a significant limitation of the study.52
than other women’, but 58% disagreed; 26. The Sexual Offences Project for Women with
• 76% of respondents agreed that ‘few people know Disabilities, conducted in Victoria in 2003, aimed to
how often women with disabilities experience examine the issues and problems victim/survivors
rape or sexual assault’; with cognitive impairment experience when reporting
sexual assault and proceeding with prosecution in
• 42% of female respondents and 35% of male Victoria. Unfortunately, ‘due to ethical concerns and
respondents agreed that ‘women with disabilities resource constraints, as well as the varying abilities
who report rape or sexual assault are less likely to of victim/survivors to share their experiences’, it was
be believed than other women’. decided that victim/survivors would not be directly
interviewed. The Project instead invited those people
23. In February 2011, the Australian Government released
who work with victim/survivors to ‘give case studies
the National Plan to Reduce Violence against Women
Submission to the UN Analytical Study on Violence against Women With Disabilities DEC2011 9DATA AND STATISTICS
that illustrate important issues and experiences when administrative procedures, accessibility of services and
reporting and/or seeking access to justice’.53 support.’ The study found that women with disabilities
have limited knowledge of rights and options to be
27. Similarly localised, Cockram’s work documenting the free from this form of abuse, and that they experience
nature and extent of family and domestic violence ‘significant barriers’ in accessing domestic violence
against women with disabilities in Western Australia support services.
in 2003, sought to ascertain whether the needs
of women with disabilities were being adequately 32. The lack of research on the issue of violence against
addressed by relevant services. The accounts of women with disabilities has been identified by
women with disabilities who have histories of family several writers as a major concern for some time.60
and domestic violence coupled with information from The small number of Australian research studies on
service agencies, highlighted discrimination against violence against women with disabilities that have
such women by service providers across a range of occurred over the past twenty years, have tended
sectors.54 to be one-off, short term, small scale, and localised
to a particular State/Territory or region. Generally
28. A Victorian study undertaken in 2006 analysed 850 speaking, the majority of projects have focused
rapes reported to Victoria Police over three years, on women with intellectual disabilities. The lack of
from 2000 to 2003.55 In 92.5% of cases, the victims independent evaluation appears to be a common
were female. More than a quarter of victims (26.5%) theme, as does the lack of translation of findings into
were identified as having a disability and, of this group, practice. Appendix 1 to this document provides a brief
15.6% had a psychiatric disability and 5.9% had an description of all known Australian projects on the
intellectual disability. The cases in the study involving issue of violence against women with disabilities for
victims with a disability were among those least likely the period 1990 – 2010.
to result in charges being laid against the offender and
twice as likely to be determined as false.
29. A recent Project undertaken by the Victorian Office Positive Initiatives
of the Public Advocate (OPA)56 examined violence
against OPA clients with cognitive impairments.57 33. In recent times it does appear that the issue of
Women comprised 76% of the study. The study found violence against women with disabilities is slowly
that women of all ages with a range of cognitive gaining more attention, particularly at the national
impairments are subjected to physical, sexual, policy level. In many respects, this is directly
psychological, emotional and impairment-related attributable to the sustained advocacy work of WWDA
violence, financial abuse and neglect. The study also and its allies.
found that, when acts of violence are not responded 34. In early 2011, as part of the National Plan to Reduce
to appropriately, further violence is likely to be Violence against Women and their Children 2010-
perpetrated against the person and it is less likely that 2022, the Australian Government announced funding
the person will report it. of up to three million dollars over three years for
30. Figures from the Victorian OPA also show that in the Community Action Grants to ‘support community
past five years, police have examined more than 1000 action to reduce violence against women through
cases of alleged abuse involving people with severe projects which prevent domestic and family violence
disabilities living in state residential care or private and encourage respectful relationships.’61 The
homes - including 282 allegations of assault, 320 of Government announced that ‘priority will be given to
rape, and six alleged abductions or kidnapping.58 projects that provide support to specific communities
of older women, women with disabilities, culturally
31. A recent study in NSW examined the experience and linguistically diverse communities and gay and
of domestic violence and women with disabilities lesbian communities.’ At the time of writing, several
living in licensed boarding houses.59 The study found of the seventeen successful projects are still to be
that domestic violence is a daily lived experience of publicly announced, although two of those which
the women, and this situation exists largely due to have been announced, will focus on violence against
‘failures in legislative frameworks, policy guidelines, women with disabilities.62
10 Women With Disabilities AUSTRALIADATA AND STATISTICS
35. WWDA also understands that, as part of the Australian 38. In Australia, Governments attempt to respond to
Government’s immediate response to the National violence against women through the legal and
Plan, the Government will commission a national judicial systems on the one hand and through service
reform project on ‘Improving Service Delivery to systems, which provide protection, support, treatment
Women with Disability’. This national reform project and education, on the other hand.68 Women with
is intended to provide an evidence base for future disabilities are not only marginalised and ignored
reform of the service system to better respond to in many of these responses, but paradoxically,
the needs of women with disabilities. At the time experience violence within and by the very systems
of writing, this national reform project is in the and settings which should be affording them, care,
preliminary planning stage and no firm details are yet sanctuary and protection.69 70
available.
39. The Supported Accommodation Assistance Program
36. Other positive developments at the national level (SAAP) (replaced in January 2009 by the National
include, for example: Affordable Housing Agreement) was the Australian
Government’s main homeless program and, as
• Representation of women with disabilities on such, funded services including women’s refuges,
the Australian Government’s national advisory shelters, and crisis services. The systematic exclusion
structure to develop the National Plan to Reduce of disabled women from such services has been
Violence against Women and their Children 2010- documented for more than two decades.71 In 2004,
2022; the New South Wales Ombudsman undertook an
• Prioritising women with disabilities in the first inquiry72 into New South Wales SAAP agencies to
Action Plan (2010–2013), including through two determine the extent of, and reasons for, exclusion
‘immediate national initiatives’; from SAAP. Overall, the inquiry found that ‘the level
and nature of exclusions in SAAP are extensive. In
• Representation of women with disabilities on the some cases, exclusions appear to be unreasonable
Australian Bureau of Statistics Personal Safety and possibly in contravention of SAAP and anti-
Survey 2012 Advisory Group; discrimination legislation, and SAAP standards and
guidelines’. Disabled people, including people with
• Representation of women with disabilities on
physical impairments, intellectual impairments,
the Advisory Board of the 24 hour national
acquired brain injuries, along with people with mental
counselling service 1800 RESPECT.63
illnesses, were one of the most significant groups
affected by exclusion from SAAP. The inquiry found
Please provide the available data on the number
that a significant proportion of exclusions were based
of women and girls with disabilities who have on ‘global’ policies of turning away all individuals
accessed services and programmes to prevent belonging to a particular population group or sharing
and address violence in the past year? Is this similar characteristics with a group. Reasons given
by service providers for exclusions included limited
information disaggregated by disability, as well
staffing levels, incompatibility with other clients/
as by sex, age, socio-economic and ethnic residents, industrial legislative issues for staff, lack of
backgrounds? physical access to buildings and lack of staff expertise
and skills.73
37. Most services in Australia do not routinely collect 40. It is well documented that domestic and family
disaggregated data on disability and violence, violence is one of the major factors in homelessness.74
including our national data collection, hospitals, 75
And it is clear that women with disabilities are
courts, and police. Little is known about the help- over-represented in the factors that contribute to
seeking experiences of women with disabilities homelessness.76 Despite this, women with disabilities
experiencing (or at risk of experiencing) violence.64 remain excluded from all levels of the National
65 66
The lack of inclusive services and programs for Affordable Housing Agreement – the primary
women with disabilities experiencing or at risk of policy and program response designed to address
experiencing violence is well documented.67 homelessness in Australia.
Submission to the UN Analytical Study on Violence against Women With Disabilities DEC2011 11DATA AND STATISTICS
41. On 1st July 2011, the Australian Government 44. However, although some data is available (through
operationalised the new National Minimum Data Set the SDAC) on the number of households in which
for Specialist Homelessness Services (SHSNMDS). some people with disabilities reside, this data is not
The SHSNMDS aims to provide quality information disaggregated by gender. Special tabulations of data
about people who are either homeless or at risk of from the SDAC are available on request, however this
homelessness and who are seeking services from is as a charged service. This means that any specific
specialist homelessness agencies77 (including women’s tabulations seeking disaggregated data by gender,
refuges, shelters, and crisis services). Many specialist would need to be purchased at a financial cost to
homelessness services also deliver prevention and those seeking the data.
early intervention programs.78 However, the new SHS
NMDS does not include an indicator for disability. Please provide any statistics, information
Clearly, the importance of the SHS NMDS in capturing
or studies on disability/ies resulting from
data on women with disabilities ought to be a critical
mechanism in promoting their access to specialist violence against women and girls?
homelessness services, including women’s refuges.
It is unlikely that access and responses to such 45. There is very little information in Australia on women
services will improve whilst disabled women remain with disabilities who have acquired their disability as
invisible and ignored in such significant national policy a result of violence, despite the fact that violence can
initiatives as the SHS NMDS. cause acute and chronic injuries that may lead directly
to disability as well as leading indirectly to disabilities
Please provide available data on the number of through distress and adverse lifestyle or coping
households in which persons with disabilities strategies:82
reside. How many of these are women-headed “When I was 16 years old, my boyfriend
households? bashed me almost to death. He beat me so
badly I suffered a severe brain injury and was
42. There are two million women with disabilities living in a coma for four months. That evening
in Australia, making up 20.1% of the population of when he bashed me he repeatedly stomped
Australian women, but apart from that, gender and on and kicked my head. While lying in my
disability data is scarce. For more than a decade now, hospital bed my family and nursing staff
WWDA has found that one of the greatest difficulties could see the imprint of his shoe in my very
in determining and substantiating the needs and swollen face.”83
human rights violations of women with disabilities
46. Cockram’s 2003 study in Western Australia found
in Australia is the acute lack of available gender and
that 38% of abused women with disabilities serviced
disability specific data, research and information - at all
by that State’s violence and/or disability services in
levels of Government and for any issue.
a two year period, had acquired their disability as a
43. The Australian Bureau of Statistics (ABS) conducts direct result of the abuse.84 This is corroborated by
a number of surveys that provide data on disability US studies which suggest that of the population of
at the population level. The most comprehensive women with disabilities, in approximately 40% of
is the (national) Survey of Disability, Ageing and instances their disabilities are a result of violence
Carers (SDAC),79 which collects information about a perpetrated against them by either their partners or
wide range of impairments, activity limitations and caregivers.85
participation restrictions, and their effects on the
47. An Australian Senate Inquiry in 2003 into ‘Children
everyday lives of people with disability, older people
In Institutional Care’ highlighted the many hundreds
and their carers. Less detailed but conceptually similar
of children in institutional care who acquired their
disability data are available in other data sources,
disabilities as a result of the violence perpetrated
including the Census of Population and Housing80 and
against them while in ‘care’. The Inquiry received
the General Social Survey (GSS).81
evidence of ‘general physical, psychological and
dental health problems through to severe mental
12 Women With Disabilities AUSTRALIADATA AND STATISTICS
health issues of depression and post-traumatic stress more likely to suffer family violence94 and sustain
disorder’,86 along with reports from many care leavers serious injury requiring hospitalisation, and 10 times
that they acquired their disabilities as a result of being more likely to die due to family violence, than non-
assaulted in the institutions. According to the Inquiry’s Indigenous women.95
Report, ‘the outcome of serious abuse, assaults and
deprivation suffered by many care leavers has had a 51. Research undertaken as part of the National Plan to
complex, serious and negative impact on their lives’.87 Reduce Violence against Women and their Children
2010-2022 looked at the economic cost of domestic
48. A 2009 report by the Family Law Council88 highlights violence in Australia.96 It found that in 2009-10, it was
data that victims of family violence receive more estimated that violence against women and their
psychiatric treatment and have an increased incidence children cost the Australian economy an estimated
of attempted suicide and alcohol abuse than the $13.6 billion, and that, without appropriate action to
general population.89 address violence against women and their children,
an estimated three-quarters of a million Australian
49. Similarly, a 2004 study in Victoria,90 which measured women will experience and report violence in the
the burden of disease caused by intimate partner period of 2021-22, costing the Australian economy
violence found that intimate partner violence: an estimated $15.6 billion. In relation to women with
• has wide-ranging and persistent effects on disabilities, it found that:
women’s physical and mental health; without appropriate action the estimated
• contributes nine per cent (9%) to the total disease cost to the Australian economy of violence
burden in Victorian women aged 15–44 and 3 per perpetrated against women with disabilities
cent in all Victorian women; in 2021-22 will be $3.9 billion, representing
25% of the total cost of the total cost of
• is the leading contributor to death, disability and violence in 2021-22.97
illness in Victorian women aged 15–44, being
responsible for more of the disease burden than 52. There have been a number of media reports over the
many well-known risk factors such as high blood years of women who have sustained horrific injuries
pressure, smoking and obesity. and permanent disabilities as a result of violence
perpetrated against them. For example, in 2003, a 31
In relation to women with disabilities, the study found year old man raped and assaulted a colleague after
that: a work function in Victoria. After raping his victim in
the stairwell of a building, the man walked out of the
women with disabilities are under-
building, looked up and down the street, and then
represented in existing prevalence studies.
returned to repeatedly stomp on her head. The 30
These women may be particularly vulnerable
year old woman was admitted to hospital with facial
to violence or its health impacts, primarily
fractures, a partly amputated right ear, brain damage
because they are less likely to have the social
and serious vaginal and anal injuries. The offender was
supports and economic resources required
subsequently sentenced to serve a minimum of 12
to protect themselves from or to leave a
years in prison.98 99
violent relationship. Low participation in
existing studies by these women also worked
against comparing the burden experienced
by them in this particular study.91
50. It is widely acknowledged that Indigenous Australians
have rates of ill-health and disability substantially
higher than other Australians.92 Australian Bureau
of Statistics data shows that nationally, 50% of
Indigenous Australians aged 15 years and over have
a disability or long-term health condition. Over half
are female (51%).93 Indigenous women are 35 times
Submission to the UN Analytical Study on Violence against Women With Disabilities DEC2011 13LEGISLATION
AND POLICIES
Is there a legal framework addressing violence
against women and girls with disability in
different contexts (within the family, at the
community and in the workplace, and in Sate
and non-State institutions such as medical,
education and other service providing
institutions)?
53. In Australia, there is no uniform definition or
understanding of what constitutes violence
against women.100 Legislation designed to protect
individuals from family and domestic violence
is the responsibility of the States and Territories.
Generally, violence against women is understood
in the context of ‘domestic’, ‘spousal’ or ‘family’
violence. The legal definition of domestic violence
for example, varies across jurisdictions because of
differences in legislation.101 Appendix Two provides
definitions of ‘family/domestic violence’ in relevant
Commonwealth/State/Territory legislation.102
54. Most of the Australian legislation designed to protect
individuals from family and domestic violence defines
what constitutes a ‘domestic relationship’ and some
of these definitions are more inclusive than others,
including for example, gay, lesbian and transgender
relationships, siblings, children, non-partner family
members, and so on. Some also include ‘informal
care relationships’ which apply to domestic support
and personal care relationships provided without fee
or reward, and which are not under an employment
relationship between the persons; and/or not on
behalf of another person or an organisation.103
55. Despite the many and varied definitions within the
various Australian laws of what constitutes domestic
violence, family violence, domestic relationships,
significant persons, relevant persons and so on,
most of the current laws do not contain definitions
which specifically encompass the range of domestic/
family settings in which women with disabilities may
live (such as group homes, institutions), nor do they
contain definitions which capture and encompassthe various forms of violence as experienced by • facilitating decision making for people with
women with disabilities. Because these experiences disabilities who lack the capacity to make certain
may not fit either traditional, or contemporary decisions themselves;
definitions, violence against women with disabilities
often goes unidentified.104 It is nominally possible for • appointing guardians and financial managers, and
women with disabilities who experience violence consents to medical and dental treatment;
to take measures such as apprehended or personal • investigating claims of exploitation, abuse or
violence orders. In practice however, for women with neglect;
intellectual disabilities who live in group homes for
example, recognition of the specific support needs of • consenting to a “special medical procedure”,
such women is limited and their access to effective such as ‘a procedure intended or likely to cause
protection, rather than promoted by legislation, is infertility’.
dependent on mediation and intervention by others
58. Most States and Territories of Australia also have
such as staff or carers, who may also be perpetrators.
an independent body (such as the Victorian OPA),
56. The Disability Discrimination Act 1992 (Cth) (DDA) which acts on behalf of, and advocates for, people
represents a rights-based approach to establishing with a decision-making disability. The roles and
the legal right for disabled people to be free from responsibilities differ from State to State, however,
discrimination and to participate in the community in they include promoting the rights of people with
the same way as non-disabled people.105 Compliance disabilities and protecting them from exploitation
with the DDA is driven mainly by a system of individual and abuse. This can include investigating the
complaints, through which people with disabilities circumstances of a person who is believed to have
enforce their rights. Many women with disabilities decision-making incapacity and is at risk in some
face significant barriers or disincentives to using the way.111 However, Public Advocates have recently
complaints process, including for example: lack of spoken out about their lack of investigative powers
awareness of the DDA; the complexity and potential and also the failure of current laws in protecting
formality of the process; the fear of victimisation; the people with disabilities from violence and abuse.112
onus on the complainant to prove their complaint; the 113
For example, under current Guardianship Laws
unequal financial and legal resources of complainants in Victoria, the Public Advocate has only the power
and respondents; the financial and non-financial costs to examine alleged mistreatment involving people
involved; and, the lack of support and assistance who are formally placed under her guardianship or
in preparing for, and going through the process.106 who are being considered for guardianship. This is
107 108
The DDA has not been used in relation to done through an order by the Victorian Civil and
violence against women with disabilities, as it is Administrative Tribunal (VCAT).114 But many people
essentially designed to prohibit discrimination against being abused may not be subject to a guardianship
people with disabilities in the areas of employment, order, meaning that large numbers of the state’s most
education, the provision of goods, services and vulnerable people are at risk. 115 According to Colleen
facilities, and access to premises. Pearce, the Public Advocate in Victoria:
57. Australian Guardianship law is the key regulatory ‘’There’s a widespread expectation that
mechanism for protecting the health and human the Public Advocate is going to be able to
rights of young persons, adults with disabilities and investigate situations of abuse involving
the elderly, and yet it remains understudied and a person with a disability, and that is not
misunderstood as a body of knowledge.109 Australia necessarily the case. We think there are large
has eight different guardianship regimes, which vary numbers of people [at risk], but it’s really
widely in their forms of regulation. Guardianship hard to quantify and that’s partly because
legislation is enacted through State and Territory abuse against people with a disability is
based Guardianship Tribunals/Boards.110 The roles of really hidden. It occurs in a government-run
Guardianship Tribunals/Boards vary but can include for institution or in people’s private homes.’’116
example:
Submission to the UN Analytical Study on Violence against Women With Disabilities DEC2011 15LEGISLATION AND POLICIES
Are practices such as 1) forced psychiatric tribunals; and that these procedures are actively
sought (by parents and carers) in other jurisdictions
intervention, 2) forced institutionalization, both within Australia and in other countries.
3) solitary confinement and restraint in Current domestic law does not prevent children
institutions, 4) forced drug and electroshock with disabilities from being taken out of Australia to
another country to have the sterilisation procedure
treatment, 5) forced abortion 6) forced performed.120
sterilization and 7) harmful practices,
61. In late June 2011, WWDA submitted a formal
prohibited by law? communication to the United Nations regarding the
ongoing practice of forced sterilisation in Australia121.
WWDA’s Submission was sent simultaneously to
Forced Sterilisation
four of the United Nations Special Rapporteurs,122
59. In Australia, the legal position on sterilisation varies requesting intervention to urge the Australian
from jurisdiction to jurisdiction.117 From 2003 to 2007, Government to comply with the recommendations of
in an attempt to ‘minimise the risk of unauthorised the Committee on the Elimination of Discrimination
sterilisations occurring’,118 the Australian Government against Women (July 2010),123 the Committee on the
began to address non-therapeutic sterilisation of Rights of the Child (October 2005),124 and the Human
children [girls] by drafting national, uniform legislation Rights Council (January 2011)125 to act immediately
(ref). However, the goal of this legislation was not to to develop national legislation prohibiting the non-
prohibit forced sterilisation of girls with disabilities, therapeutic sterilisation of girls and adult women with
but instead to regulate who could authorise non- disabilities in the absence of their fully informed and
therapeutic sterilisations of minors with ‘decision- free consent. WWDA’s Submission further requested
making disabilities’. The draft legislation was strongly assistance from the Special Rapporteurs to ensure
opposed by disability and human rights organisations that the Australian government implement a range
on the grounds that it did not clearly prohibit of strategies to enable women with disabilities to
sterilisation in all non-therapeutic circumstances, it realise their right to health, their right to freedom
only applied to children with intellectual disabilities, from violence, their rights to reproductive freedom
and it applied a broad test for the judicial authorisation and to found a family, and their right to freedom from
of sterilisation. Critically, the primary emphasis of the torture or cruel, inhuman or degrading treatment or
draft legislation was not on the prohibition of this punishment.
human rights abuse but on the elaboration of the
62. In late 2011, WWDA collaborated on the development
circumstances and principles under which it could
of an international Briefing Paper on Sterilization of
occur – which were essentially permissive rather than
Women and Girls with Disabilities.126 This briefing
protective.
paper has been jointly prepared by WWDA, Human
60. The Australian Government discontinued this work in Rights Watch (HRW), the Open Society Foundations,
2007 because it believed that sterilisation of girls with and the International Disability Alliance (IDA) as part of
disabilities had declined and that existing guardianship the Global Campaign to Stop Torture in Health Care.127
and court mechanisms for authorising sterilisation The paper gives a background to the issue of forced
procedures worked adequately.119 This was incorrect, sterilisation, outlines various international human
and, to date, existing State and Territory legislation rights standards that prohibit forced sterilisation,
and federal court mechanisms have been ineffective and offers several recommendations for improving
in eliminating non-therapeutic, forced sterilisations laws, policies, and professional guidelines governing
of young girls with disabilities. Anecdotal reports and sterilisation practices.
health insurance statistics provide evidence that non-
63. Anecdotal evidence indicates that applications for
therapeutic sterilisation of girls with disabilities has
non-therapeutic sterilisations of women and girls
occurred in greater numbers than officially reported;
with disabilities in Australia may be on the increase
that it occurs without authorisation by courts and
rather than in decline. For example, recent reports
16 Women With Disabilities AUSTRALIALEGISLATION AND POLICIES
to WWDA suggest that gynaecologists are applying managing menstruation is a medical matter. Dowse
to Guardianship Boards for authorisation to perform & Frohmader (2001) reported that in Australia, there
hysterectomies on disabled girls as soon as they reach have been no long-term studies into the health effects
the age of 18 years. It appears that the applications are of long-term hormonal suppression of menstruation
being sought solely for the purpose of ‘prevention of on young women although risk factors such as
future pregnancy’.128 dysfunction of the ovaries and the cardiovascular
system have been identified.132
Forced Contraception/Menstrual Suppression
Deprivation of liberty and restrictive practices
64. The management of menstruation in women with
disabilities should be no different to that provided for 67. Women and girls with disabilities in Australia continue
any other woman. However, in the case of women to be subjected to multiple forms and varying
and girls with intellectual disabilities, there appears degrees of ‘deprivation of liberty’ and are subjected
to be an assumption that menstruation is a problem to unregulated or under-regulated restrictive
that should be overcome by menstrual suppression interventions.133 134 This is particularly the case for
or elimination of the cycle.129 Forced contraception women and girls with intellectual and/or cognitive
through the use of menstrual suppressant drugs (such disabilities, developmental disabilities and those with
as Depo-Provera) is a widespread, current practice psychosocial disabilities. A restrictive intervention
in Australia, particularly in group homes and other has been defined as ‘any intervention that is used
forms of institutional care. It has been justified as a to restrict the rights or freedom of movement of a
way of reducing the ‘burden’ on carers who have to person with a disability’,135 and can include practices
‘deal with’ managing menstruation of disabled women such as chemical restraint,136 mechanical restraint,137
and girls. It is however, a means of denying basic physical restraint,138 social restraint,139 seclusion140.
reproductive rights and is a form of sexual violence.130 Such practices are often imposed as a means of
coercion, discipline, convenience, or retaliation by
65. In 1992, the Victorian Intellectual Disability staff, family members or others providing support.141
Review Panel submitted a report to the Minister These practices are not limited to institutions such
for Community Services on the use of menstrual as group homes, but also occur in educational
suppressants in Victorian institutions. A major settings (such as schools), hospitals, residential aged
finding of the Panel was that there had been blanket care facilities and other types of institutions (such
administration of drugs causing menstrual suppression as hostels, boarding houses, psychiatric/mental
to women in institutions who did not require this health community care facilities, prisons, supported
medication for contraceptive purposes and for whom residential facilities).
the medication was prescribed without their consent.
The purpose of administering the medication was 68. Australian studies of restrictive practices and people
for the ease of management of the menstrual cycle with disabilities are limited and publicly available data
of the women, that is, for the convenience of the from government agencies is not easily sourced.142
staff caring for them. The Panel found that the drugs However, in Victoria the public record reports that
Depo-Provera and Noresthisterone were being used during 2005/06, on average, 28% of residents with
in Victoria without routine gynaecological screening intellectual disabilities in accommodation services
(Law Reform Commission of Western Australia 1994). were subject to restraint and/or seclusion and 23% of
clients with intellectual disabilities in respite services
66. A 1994 Australian study by Carlson & Wilson,131 were subject to restraint and/or seclusion.143 The
examined menstrual management issues for women Australian Psychological Society144 asserts that at least
with intellectual disabilities. The study found that a quarter of all people with an intellectual disability
frequent access to medical advice and an apparent will be subject at some time to some form of restraint,
lack of access to advice about educational and and has called on the Australian Governments to
environmental management approaches and to take urgent action to end restrictive practices in the
practical support, may be reinforcing a perception that disability sector:
Submission to the UN Analytical Study on Violence against Women With Disabilities DEC2011 17You can also read
