Thursday, September 21, 2017

Do older women have the right to sex? The Case of Carvalho Pinto de Sousa Morais v. Portugal - ECoHR

Elder rights as such are not part of the European Convention on Human Rights. However, through different other articles of the European Convention for Human Rights, throughout the year, the European Court of Human Rights has addressed and promoted (but sometimes restrained) the development of human rights of older persons.
In a recent decision (25 July 2017), the ECoHR made an interesting decision, which touches upon both sexism and ageism as well.
The short facts of the facts were as follows:
The applicant was born in 1945. In December 1993 the applicant became a patient at the gynaecology department of the Alfredo da Costa Maternity Hospital. On 9 December 1993 the applicant was diagnosed with bartholinitis, a gynaecological disease. She started treatment, and On 21 May 1995 the applicant was admitted to the CHLC for a surgical procedure  and on 22 May 1995 the applicant had both glands, on the left and right sides of the vagina, removed. On an unknown date after being discharged, the applicant began to experience intense pain and a loss of sensation in the vagina. She also suffered from urinary incontinence, had difficulty sitting and walking, and could not have sexual relations. Later on, the applicant was informed after being examined at a private clinic that the left pudendal nerve had been injured during the operation.
On 26 April 2000 the applicant brought a civil action with the Lisbon Administrative Court against the CHLC under the State Liability Act seeking damages of approximately 325,050 euros (EUR), of which PTE 50,000,000 (EUR 249,399) was in respect of non-pecuniary damage owing to the physical disability caused by the operation.
As to the merits, the Lisbon Administrative Court found that the surgeon had acted recklessly by not fulfilling his objective duty of care, in breach of leges artis, and established that there was a causal link between his conduct and the injury to the applicant’s left pudendal nerve. The Lisbon Administrative Court also established that it was that injury which caused her, among other problems, the pain and loss of sensation in the vagina and urinary incontinence. As a consequence, she had difficulty walking, sitting and having sexual relations which, all together, made her feel diminished as a woman. Consequently, the applicant was also depressed, had suicidal thoughts and avoided contact with members of her family and friends. For those reasons the Lisbon Administrative Court considered that the applicant should be awarded EUR 80,000 compensation for non-pecuniary damage. As for pecuniary damage, the Lisbon Administrative Court granted EUR 92,000, of which EUR 16,000 was for the services of a maid the applicant had had to hire to help her with household tasks.
This decision was appealed, and for the purposes of this short summary, the following text of the Appeal court's decision as to reduce the damages:
"Additionally, it should not be forgotten that at the time of the operation the plaintiff was already 50 years old and had two children, that is, an age when sex is not as important as in younger years, its significance diminishing with age."
In light of this justification for the reduction of the damages - the application was made to the ECoHR. The relevant articles were Article 8 (re the right to private and family life); and Article 14 (re anti discrimination).
We will not get into all of the ECoHR discussion and considerations, but will focus on its references to the justification re the age of the applicant:

The Court acknowledges that in deciding claims related to non-pecuniary damage within the framework of liability proceedings, domestic courts may be called upon to consider the age of claimants, as in the instant case. The question at issue here is not considerations of age or sex as such, but rather the assumption that sexuality is not as important for a fifty-year-old woman and mother of two children as for someone of a younger age. That assumption reflects a traditional idea of female sexuality as being essentially linked to child-bearing purposes and thus ignores its physical and psychological relevance for the self-fulfillment of women as people. Apart from being, in a way, judgmental, it omitted to take into consideration other dimensions of women’s sexuality in the concrete case of the applicant. In other words, in the instant case the Supreme Administrative Court made a general assumption without attempting to look at its validity in the concrete case of the applicant herself, who was fifty at the time of the operation at issue.

In the Court’s view, the wording of the Supreme Administrative Court’s judgment when reducing the amount of compensation in respect of non-pecuniary damage cannot be regarded as an unfortunate turn of phrase, as asserted by the Government....

In the Court’s view, those considerations show the prejudices prevailing in the judiciary in Portugal , as pointed out in the report of 29 June 2015 by the UN Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers .... They also confirm the observations and concerns expressed by the Permanent Observatory on Portuguese Justice regarding the prevailing sexism within judicial institutions in its report of November 2006 about domestic violence (see paragraph 29 above).

In light of these justifications and more, the ECoHR found that there has been a violation of Article 14 (taken in conjunction with Article 8).

However, this case is of much importance regarding how the different judges reflect not only about sexism (the discrimination of the applicant based her gender), but about ageism (to what extent age was a justifiable reasoning).

In general, it should be noted, that ageism is almost "non-existent" in the ECoHR reasoning. If it was not for the feminist ideology, it seems that the legal result would have been different. It is highly expressed in the minority opinion of judges Ravarani and Bosnjak, which base their dissent on the argument that age classification is justified for the purposes of damages, and hence, this justifies the outcome of this case as well.

It is disappointing to see how the ECoHR is still unaware to the concept of ageism and its socio-legal consequences, and it is a about time that this reality would change.

For more on this topic see for example the following articles:

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