Torture not Treatment - Disability Rights International

TORTURE NOT TREATMENT
traumatic stress disorder, severe depression, chronic anxiety, memory loss and sleep
disturbance. 154
Acquiescence of a public official or other person acting in an official capacity
International human rights law requires some form of state action to identify a practice such as
torture. 155 It has been established that governments can be held responsible for actions taken at
private hospitals, psychiatric facilities or other institutions that detain individuals for treatment
under government authority. 156 The UN Special Rapporteur on Torture has stated that ―the
prohibition against torture related not only to public officials, such as law enforcement agents in
the strictest sense, but may apply to doctors, health professionals, and social workers, including
those working in private hospitals.‖ 157 It is, therefore, the obligation of the government ―to
prevent, investigate, prosecute and punish such non-State or private actors.‖ 158
JRC is licensed and certified by agencies of state government and receives state and federal
funding, and it provides services that are sanctioned by the government. It is the obligation of the
US federal government to protect children and adults with disabilities from torture or ill
treatment by outlawing the use of electric shock and long-term restraints as a form of treatment.
Lack of protection under Federal Law
There are a number of gaps in federal law that make is possible for state law to permit and
regulate aversive treatment. The Eighth Amendment to the US Constitution prohibits cruel and
unusual punishment. However, the US Supreme Court has ruled that protections under the
Eighth Amendment apply only in the context of criminal law and do not provide students any
protections in school. 159 In the absence of constitutional protections, Human Rights Watch has
observed that federal and state laws have failed to provide protections required by international
law against corporal punishment. 160 The National Disability Rights Network has released a
recent report showing the restraints and seclusion are used widely in US schools in almost every
state, resulting in serious dangers to children. 161 At the request of Congress, the Government
Accountability Office conducted an inquiry into the practice of restraints in schools, as well. The
GAO report found that no federal law exists limiting the use of restraints in schools. 162
The Individuals with Disabilities Education Act (IDEA), the main federal legislation regulating
education of children with disabilities, strongly supports the commonly accepted preference for
Positive Behavioral Intervention and Supports (PBIS). ―[I]n the case of a child whose behavior
impedes his or her learning or that of others,‖ IDEA states that ―when appropriate, strategies,
including positive behavioral interventions, strategies and supports‖ [italics added] should be
considered. 163 Yet IDEA does not prohibit aversives. Despite the recommendations of IDEA
28