Abstract
The Convention on the Rights of Persons with Disabilities (CRPD), ratified by Ireland in 2018, represents a paradigm shift in how we view disability, moving from a medical model which considers disability as something that needs fixing, to a social model, which places the burden on society to adapt in order to be fully inclusive. It is built around the concepts of equality and non-discrimination and emphasises that persons with disabilities (PWD) possess human rights on the same basis as everyone else.
Article 12 of the CRPD protects the legal capacity of PWD, guaranteeing that their decisions will be legally respected. It prohibits treating the decisions of someone with a mental condition different, merely because of a defect in their decision-making ability. The Office of High Commissioner for Human Rights has interpreted this provision to prohibit any criminal defences which operate to declare someone not responsible for their actions because of a mental illness.
Most of the discourse regarding this Article has focused on the insanity defence. There has been almost no consideration of partial defences such as infanticide, which reduce an intentional killing from murder to a lesser offence, and usually impose a significantly more lenient sentence upon conviction than would be imposed on a defendant who was not suffering from a mental condition.
This paper will argue that the defence of infanticide violates Article 12 of the CRPD. It further argues that the limitations imposed by the defence constitute an unjustifiable discrimination based on gender (Article 6) and attach an insufficient value to the infant’s life (Article 10). It recommends the introduction of an exception to the mandatory life sentence for murder to allow for consideration of the culpability of the offender when there is a mental condition at the time of the offence.
Article 12 of the CRPD protects the legal capacity of PWD, guaranteeing that their decisions will be legally respected. It prohibits treating the decisions of someone with a mental condition different, merely because of a defect in their decision-making ability. The Office of High Commissioner for Human Rights has interpreted this provision to prohibit any criminal defences which operate to declare someone not responsible for their actions because of a mental illness.
Most of the discourse regarding this Article has focused on the insanity defence. There has been almost no consideration of partial defences such as infanticide, which reduce an intentional killing from murder to a lesser offence, and usually impose a significantly more lenient sentence upon conviction than would be imposed on a defendant who was not suffering from a mental condition.
This paper will argue that the defence of infanticide violates Article 12 of the CRPD. It further argues that the limitations imposed by the defence constitute an unjustifiable discrimination based on gender (Article 6) and attach an insufficient value to the infant’s life (Article 10). It recommends the introduction of an exception to the mandatory life sentence for murder to allow for consideration of the culpability of the offender when there is a mental condition at the time of the offence.
| Original language | English (Ireland) |
|---|---|
| Publication status | Published - 21 Nov 2021 |
| Event | Annual Conference of the Irish Association of Law Teachers 2021 - River Lee Hotel, Cork, Ireland Duration: 19 Nov 2021 → 21 Nov 2021 |
Conference
| Conference | Annual Conference of the Irish Association of Law Teachers 2021 |
|---|---|
| Country/Territory | Ireland |
| City | Cork |
| Period | 19/11/21 → 21/11/21 |
