The Irish State’s Response to its Gendered and Historical Human Rights Violations — Part Two. (original) (raw)
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The Irish State’s Response to its Gendered and Historical Human Rights Violations - Part One.
In the context of international human rights law, a common criticism emerges of Ireland’s record in relation to gendered and historical human rights abuses: the Magdalene Laundries, the Mother and Baby Homes and the practice of symphysiotomy. The criticism centres on Ireland’s lack of a “prompt, independent, and thorough investigation” of the alleged abuses, as well as a lack of prosecution and adequate compensatory redress schemes. Such censure persists among the international legal community notwithstanding the attempts by the State to address these perceived failures. The first part of this article will discuss and compare the State action taken in response to these abuses, and also consider this action in the context of international human rights law by focussing on UN Treaty Bodies commentary. The second part will consider examples of recent relevant Irish case law; M.K.L. v Minister for Justice and Equality dealt with the administration of the ex gratia payment scheme in the context of the Magdalene Laundries, and Farrell v Ryan, a “test case” arguing that a symphysiotomy had been carried out without justification. It will also consider the report published by the Office of the Ombudsman in late 2017 — “Opportunity Lost”—following his investigation into the administration of this ex gratia payment scheme. In conclusion, it will reflect, briefly, on whether an entirely different approach to these issues should be given consideration, e.g. does the common law, tort-based approach inevitably result in an overly narrow response to these issues?
In the name of God and the Nation. Women's institutional abuse in twentieth century Ireland
Ireland may be considered the paradigm of institutional repression and violence against women and children during the twentieth century, based on a socio, cultural and religious patriarchal construction of national identity, exercised in establishments such as the Magdalene Laundries and the Mother and Baby Homes. But Ireland also constitutes an excellent example of civil society response: journalistic and scholar research; gathering of victims-survivors' testimonies; social campaigns; literary, artistic and audiovisual products which have helped unveil the secrecy around these institutions and advocacy processes which have resulted in the setting up of redress schemes. This paper briefly approaches both aspects of institutional abuse both sides of the border.
Social Science Research Network, 2016
6 West, above n 2 ('progressive constitutionalism') 651. Although West is speaking here in the US context, this framing applies well to Fletcher J's engagement with the Irish Constitution. views law as an open set of possibilities, and thus a vehicle for change, growth, and authenticity, rather than the static product of an unambiguous past historical process, and thus a vehicle for obedience. 7 In her re-visioning of the decision, Fletcher J harnesses the disruptive potential of the Constitution to address the power imbalances perpetuated by Article 40.3.3. Contrasting her judgment to the original 'expose[s] the contingency and biases of existing decisions and disrupt[s] the unique authority of the courts and legal decisionmaking'. 8 In my commentary I bring together the work of Fletcher J, the feminist judge, and Ruth Fletcher, the feminist academic, to critique the existence and impact of 40.3.3. Reading the judgment in light of Fletcher's academic work merges aspects of critique and law reform which are central to the feminist judging methodology. The Emergence of Article 40.3.3 In order to understand the decision in Attorney General v X it is necessary to consider the historical and jurisprudential context within which the case arose. At that time abortion in Ireland was regulated within a web of Constitutional, legislative, and common law provisions originating with the Offences Against the Person Act 1861 (OAPA), sections 58 and 59, which prohibit procuring or attempting to procure a miscarriage. 9 Sections 58 and 59 of the OAPA were reaffirmed in the Health (Family Planning) Act 1979. 10 In England, the OAPA was interpreted to allow for an exception to the general prohibition when the life or health (physical or mental) of the pregnant woman were likely to be severely impacted. 11 However, it is clear that even prior to the insertion of 40.3.3 into the Irish Constitution, such an interpretation was unlikely to be permissible in Ireland. 12 Evidence for this proposition can be traced through the statements of Kenny J in Ryan v Attorney General 13 to its clearest exposition in the judgment of Walsh J in G v An Bord Uchtála, when he held that a child: has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth The right to life necessarily implies the right to be born… 14 Notwithstanding the prevailing jurisprudence, a concern emerged that the Constitution could provide an avenue through which abortion would become
Northern/Irish Feminist Judgments : Judges’ Troubles and the Gendered Politics of Identity
2017
6 West, above n 2 ('progressive constitutionalism') 651. Although West is speaking here in the US context, this framing applies well to Fletcher J's engagement with the Irish Constitution. views law as an open set of possibilities, and thus a vehicle for change, growth, and authenticity, rather than the static product of an unambiguous past historical process, and thus a vehicle for obedience. 7 In her re-visioning of the decision, Fletcher J harnesses the disruptive potential of the Constitution to address the power imbalances perpetuated by Article 40.3.3. Contrasting her judgment to the original 'expose[s] the contingency and biases of existing decisions and disrupt[s] the unique authority of the courts and legal decisionmaking'. 8 In my commentary I bring together the work of Fletcher J, the feminist judge, and Ruth Fletcher, the feminist academic, to critique the existence and impact of 40.3.3. Reading the judgment in light of Fletcher's academic work merges aspects of critique and law reform which are central to the feminist judging methodology. The Emergence of Article 40.3.3 In order to understand the decision in Attorney General v X it is necessary to consider the historical and jurisprudential context within which the case arose. At that time abortion in Ireland was regulated within a web of Constitutional, legislative, and common law provisions originating with the Offences Against the Person Act 1861 (OAPA), sections 58 and 59, which prohibit procuring or attempting to procure a miscarriage. 9 Sections 58 and 59 of the OAPA were reaffirmed in the Health (Family Planning) Act 1979. 10 In England, the OAPA was interpreted to allow for an exception to the general prohibition when the life or health (physical or mental) of the pregnant woman were likely to be severely impacted. 11 However, it is clear that even prior to the insertion of 40.3.3 into the Irish Constitution, such an interpretation was unlikely to be permissible in Ireland. 12 Evidence for this proposition can be traced through the statements of Kenny J in Ryan v Attorney General 13 to its clearest exposition in the judgment of Walsh J in G v An Bord Uchtála, when he held that a child: has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth The right to life necessarily implies the right to be born… 14 Notwithstanding the prevailing jurisprudence, a concern emerged that the Constitution could provide an avenue through which abortion would become
"Punishing Infanticide in the Irish Free State" (2013) 3(1) Irish Journal of Legal Studies 1-35
This article explores sentencing of women convicted of infanticide offences at the Central Criminal Court between 1922 and 1949. A sample of 124 cases involving women who had been convicted of manslaughter, concealment of birth, or child abandonment/child cruelty, after appearing at the Central Criminal Court on a charge of murdering their newly or recently born infant, is examined. The sentences imposed in this sample mainly include short prison terms, suspended prison sentences, and conditional discharges/probation. It will be argued that the limited use of imprisonment, particularly in cases involving manslaughter convictions, indicates that Irish judges took a lenient approach to sentencing in cases of maternal infanticide. The court records show that a notable aspect of sentencing practice in these Irish infanticide cases is the use of nonpenal religious institutions, mostly convents, as an alternative to traditional custody. The impact of patriarchal ideologies and pragmatic considerations on sentencing practice in cases of infanticide is explored, particularly in regard to the use of religious institutions. One of the questions considered is whether the approach to sentencing women convicted of infanticide offences was a unique product of the patriarchal, conservative, catholic, and nationalist philosophies of the Irish Free State, or whether sentencing practice in these cases reflects wider trends in the response to female criminality which have been identified elsewhere.