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Human rights: what are they good for?

By Jennifer Wilson - posted Wednesday, 29 July 2009


There is a good deal of opposition to the introduction of a federal charter of rights in Australia. Some of the common arguments against the proposal suggest that things are just fine as they are; that we are extremely privileged to live in this democracy as it is, and that some countries that already have a bill of rights or its equivalent are not necessarily renowned for their democratic practices. Things seem to become particularly contentious around the topic of the human rights of children who are abused by parents, legal guardians, and other primary caretakers, that is, by non-state actors in the private sphere.

International conventions, to which Australia is signatory, have recognised for some time the necessity to broaden the concept of human rights beyond the popular notion of civil and political rights. The Convention on the Elimination of Violence Towards Women (1994), the Beijing Platform for Action (1995), and The Convention on the Rights of the Child (1989) all address the issue of private violence by non-state actors. In 2001, Amnesty International broadened its mandate to include violence against women as human rights abuse, as well as to include “all grave abuses of human rights”. In this, Amnesty extended the traditional interpretation of human rights into the private sphere.

But what difference do these Conventions make to the plight of the abused child?

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The immediate answer to that question is that we do not know, because child abuse and child sexual abuse in Australia are not perceived in terms of human rights abuse: as is, for example, discrimination against the disabled; racial discrimination, sexual discrimination, and other abuses that are covered by our anti-discrimination legislation.

This legislation is based on a concept first laid out in 1948 in the Universal Declaration of Human Rights, and extrapolated in subsequent Conventions. It has made a great deal of difference to a great many human beings, though it is still a work in progress. To those who argue that a human rights approach to child abuse is an academic waste of time, I must say, how do you know, because we haven’t done it yet, and nor has any other country in the world.

The face of the child makes a powerful moral claim on us, none more so than the face of the suffering child. The abused child is rendered rightless in the process of abuse. To be without rights is to be perceived as less than human. The profound sense of violation reported by survivors of child sexual abuse is often described as soul damage. Perhaps it is also appropriate to think of that profound damage as the flagrant destruction of the rights that help to construct us as human, in the eyes of others, and of ourselves.

Perpetrators acknowledge no human status in their victims: the child is merely a means to an end, the end in this case being gratification of the adult’s sexual needs, and/or the adult’s need to experience an entirely controlling power over another human being. As survivors will agree, the journey back from that rightless position to the point where one can come to believe that one has even the right to have rights, is a journey of terrible hardship, and unspeakable struggle. Many do not make it through.

As far as I am aware, there has as yet not been an Australian study on the types of human rights abuses most frequently and consistently perpetrated in our country. It is not unreasonable to consider, given the child abuse and domestic violence statistics, that our most frequent and grave human rights transgressions may well be those perpetrated in the private sphere by non-state actors, including the abuse and sexual abuse of our children by their parents, family members, legal guardians and other primary carers.

That the family is built on the love and concern of human beings for one another is a reasonable assumption, and currently an expanding global belief as Western cultural norms become increasingly dominant in societies where once marriage might have been seen in primarily economic terms. When violence of any kind occurs within the family, it ruptures powerful cultural fantasies of family life as a private and safe haven to which one may retreat from the trials of the public world. No doubt every family, no matter how it is constructed, begins its collective life with these hopes and dreams, and with the intention to create a refuge wherein all its members can be safe.

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But for the child who is subjected to abuse, the home is far from a refuge: it is a highly dangerous and sometimes lethal environment. There can be little as bleak as the daily existence of the child whose domestic world consists of intimate abuse and exploitation by the adults who are charged with her care.

What, then, of the child whose topoanalysis reveals primarily sites of torment and terror?

Experts on trauma such as Judith Lewis Herman have argued strongly that the experience and aftermath of trauma suffered by victims of domestic violence and sexual abuse is no different from the traumatic aftermath suffered by soldiers returning from the horrors of the battlefield.

Isabel Marcus describes domestic violence as terrorism in the home, and she is not alone in making this observation. However, intra-familial violence continues to be viewed pervasively as qualified violence. This qualification gives rise to a privileging distinction between the perceived gravity of events that occur in the public sphere, and the perceived lesser gravity of those that are perpetrated in the family and the home. This public/private dyad permeates mainstream perceptions of human rights, and who is entitled to protection under their ambit.

If naming is a political activity, a failure to name is no less political. In the human rights discourse what is normalised as human rights is what is named as human rights, what is not named is necessarily excluded from the concept and its entitlements. To take this a step further, the prevailing definitions of human rights as primarily civil and political matters establishes whose lives are considered fully human, in terms of the right to have their suffering acknowledged and attended to by human rights instruments.

This is a serious matter. If one is to make the claim for human rights, one must include everything human within the ambit of that claim. The public/private dyad cannot be maintained, without the implication that the private is less significantly human. Are certain bodies more worthy of having protective human rights than others? Are certain sufferings to be considered less than others because of the arena in which they were perpetrated? In other words, what is and is not speakable in human rights discourse in Australia today, and what does that tell us about ourselves, and the society we are continually constructing?

Human rights commentator, Associate Professor Roger Levesque, observes that international human rights law offers a global sense of moral and social obligation, of community responsibility and mutuality, through the introduction of rudimentary universal standards and principles that seek to regulate how humans treat one another. Human rights law enables a process of cultural change. As is evident in the Australian statistics, and as Levesque points in his survey of American statistics, in spite of the rising awareness of, and concern about child sexual abuse in western countries, there is no corresponding drop in its incidence. This suggests that some profound change is urgently required in the perceived status of children in western democracies.

There is an urgent need for us to rethink our familiar ideologies of childhood and family. Human rights law argues that children do not belong to their parents, children belong to themselves, and have the same fundamental human rights entitlements as adults. For this reason alone, child abuse and child sexual abuse is just as much a human rights issues as is any other form of exploitation and discrimination inflicted upon adults. As long as we do not grant the child’s dignity and sovereignty, we continue to perceive and treat her and him as an object, and not as a subject. This attitude is one of ownership and entitled privacy, that inevitably works to conceal, and frequently justify child abuse.

Human rights law offers the process through which societies can bring about necessary change. This has been shown in our own anti-discrimination legislation, and in countries that have introduced a charter of rights, such as the United Kingdom. Human rights law offers another level of appeal for those who are frequently left without a voice under our current systems of legislation. It demands that we engage in public debate about existing, entrenched patterns of private power. It offers a language and a framework within which we can question hegemonic practices that maintain an unacceptable status quo.

It is unacceptable for a country to be signatory to an international human rights Convention, yet to fail to observe the language of that Convention in its domestic affairs. In Article 19, CROC specifically names the abuse and sexual abuse of children by non-state actors in the private sphere as human rights abuse, yet domestically, we do not.

It is also remarkable and ironic, that while perpetrators of abuses against children are entitled to observation of their human rights when they are imprisoned, no such supportive human rights framework is available for their victims.

There are several possible models for a charter or bill of human rights. Whatever might be eventually decided upon, we must argue that the concept of human rights it is based on is extended beyond the public sphere interpretation, to give equal significance to private sphere abuses against children. The Canadians, for example, already have a Bill of Rights. There has lately been an effort on the part of activists to have what is described as “non-state torture” addressed by the Bill. This includes child abuse and child sexual abuse. We have the opportunity to include these specific considerations in our first federal charter and in that, we will be breaking new ground internationally.

However, such global leadership will require that those who oppose the charter recognise the expanded concept of human rights that already exists in international conventions, and re-think their arguments from that new position. It will require the same acknowledgement from those who support the charter yet fail to acknowledge private sphere abuse. The unnecessary and unacknowledged dyad of public/private abuse, that is, of abuse and qualified abuse, will need to be dropped from the Australian human rights discourse. Unless our proposed federal charter is written from this foundation it will not be an inclusive charter of human rights, but a charter of the rights of some humans that will inevitably designate those excluded from its ambit as less than fully human. It will be a tragedy and an indictment if those so excluded are our vulnerable children.

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About the Author

Dr Jennifer Wilson worked with adult survivors of child abuse for 20 years. On leaving clinical practice she returned to academia, where she taught critical theory and creative writing, and pursued her interest in human rights, popular cultural representations of death and dying, and forgiveness. Dr Wilson has presented papers on human rights and other issues at Oxford, Barcelona, and East London Universities, as well as at several international human rights conferences. Her academic work has been published in national and international journals. Her fiction has also appeared in several anthologies. She is currently working on a secular exploration of forgiveness, and a collection of essays. She blogs at http://www.noplaceforsheep.wordpress.com.

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