Treaty rights versus legal rights

The emblem of the United Nations, showing a map of the world centred on the North Pole (i.e. a polar azimuth projection), with olive branches around itA couple of days ago there was a demonstration in Dublin to pressure the government there to ratify the UN Convention on the Rights of People with Disabilities (CRPD), which Ireland has signed but not yet ratified (Britain has ratified the Convention and the Optional Protocol). At the UN’s site you will find a map of which countries have signed or ratified the convention and protocol; you might notice that they include a large number of countries where disabled people are still held in institutions for much of their lives and otherwise denied what most of us consider essential rights including the right to life itself. A mother of a son with Asperger’s syndrome, and some unrelated physical impairments, made a blog post and some tweets claiming that “people with intellectual disabilities are not allowed a sexual relationship apparently”. Her son believes this, so someone must have told him. It is misinformation.

The rights of disabled people in any country are dependent not on international treaties but on national laws and (where they exist) constitutions. Ratifying a treaty does not change or annul existing law in any country, not least because they are usually framed in general terms while laws deal with specifics. Even in the case of the European Convention on Human Rights, which is enshrined in UK law as the Human Rights Act, a court judgement that a law violates the convention does not strike it down, but by convention the government then moves to amend the law accordingly. Unlike with a written constitution, where the court’s judgement strikes the law down, the law remains in place until amended.

A disabled person is not banned from having a sexual relationship just because the legislature has not ratified the CRPD. The lack of an explicit, stated right is not the same as a prohibition, as things are permitted unless prohibited by a law or a court order. If this woman’s son is not under guardianship, he has the same legal rights as anyone else; if he is, he may be allowed or not allowed as his guardian sees fit. In the UK, which has ratified the Convention, such things are governed by the Mental Capacity Act and people (usually those living in care homes) and people have been barred from having sexual relationships on grounds such as that they do not understand the principles of consent, or of the risk of sexually-transmitted infections, or that sex may lead to pregnancy. In a well-known case in Scotland, a couple were prevented from marrying because social workers regarded the 17-year-old bride as incapable of understanding what marriage entailed; those with learning difficulties, particularly single mothers, often have their children removed because of real or alleged incapability to look after them. All this in a country which has ratified the CPRD. I’m sure Ireland has equivalent legislation and none of this would change if it ratified the CPRD.

So, it’s not true that a person with Asperger’s syndrome cannot have a sexual relationship. I know many who have, and some who have married and/or had children. Men and women. They do not necessarily even face questions about their competence. It is misleading to claim that they are not allowed a sexual relationship just because their country has not ratified a treaty, and it is cruel for anyone to suggest to them that this is the case.

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