sou · GNB32 · 2000-01-01 00:00:00 — All those sterilizations were performed, by definition, without consent, after application had been made by a third party, i.e. almost exclusively persons in position of authority at various institutions. In the investigators opinion it is impossible to speak of any form of voluntary consent in these cases. All persons sterilised under the 1934 Act or under Section 2 of the 1941 Act ought therefore to be entitled to compensation from the State. In most of the cases studied by the investigator, however, the individual personally applied for or consented to the measure being taken. As has already been indicated, it is the investigators opinion that these applications included many persons who were nonetheless sterilised against their own will. In the investigators opinion, there are on the whole certain difficulties involved in retrieving from archive material particulars supporting the individual persons claim that he or she was sterilised against his/her will. The investigator therefore has discussed the possibility of defining a number of typical situations or criteria where it must be deemed highly probable that sterilization took place against the will of the individual or when the individual was in no position to influence a decision concerning sterilization, in spite of having personally applied for or consented to the procedure - typical situations, the existence of which, more often than not, was apparent from the documentation. Examples of such situations have already been quoted. The investigator proposes that ALL persons sterilised under the 1941 Act and under the four headings given below should also be entitled to compensation. The investigator is aware that in some cases there may have been strong reasons for sterilization under one of these headings and that the measure can thus have been justifiable. Even so, the investigator has chosen not to make any exception for such a situation in these cases, so as to facilitate handling procedure and opportunities for sterilised persons to obtain compensation. Minors and legally incompetent persons In the investigators opinion, persons who were sterilised before reaching majority or while they were legally incompetent for some reason other than that of being under age had limited possibilities to understand the full consequences of sterilization. At all events, they had less opportunity of influencing their situation than a person who was of age and under no legally competent. Inmates of penal and other institutions sterilised during their there or in connection with discharge As has already been noted, during the 1940s and the early 1950s the authorities to a great extent made sterilization a prerequisite both for discharge from institutions and for the receipt of various benefits during institutional . The institutions concerned mainly comprise national, county council, municipal and private institutions for mentally retarded (occupational homes, nursing homes, educational homes, special schools for the mentally retarded, day schools, special hospitals etc.), but also institutions for juveniles, residential treatment centres for alcoholics, institutions for epileptics, mental hospitals and prisons. It seems safe to assume that voluntary applications for or consent to sterilization during in institutions of these kinds were highly exceptional. Most of the applications of this kind indicate that they were induced by hopes or promises of such benefits as furlough, probation, work outside the institution, discharge, or by threats of discharge being postponed; in other words, the individual persons application was made or consent given in a quasi-coercive situation. Sterilization of persons characterized as mentally ill, mentally retarded or epileptic without being admitted to an institution One relatively common ground for sterilization at least until the 1950s, was, as mentioned previously, for a person to be classified by a physician as mentally retarded. Sterilization could then be performed on both eugenic and social grounds, subject to the other prerequisites being satisfied. The same applied to persons diagnosed as mentally ill or as an epileptic. In the investigators opinion, many of these persons had limited possibilities of fully understand the consequences of sterilization. indicates that sterilization in many cases was presented as an alternative to various forms of custodial care, such as the risk of admission to an institution or the placing of children in public care. The individual persons possibilities of influencing the sterilization decision were, as a general rule, very significant. Sterilization as an express condition for other official decisions As mentioned previously, the investigator has been able to establish that sterilization was made a strict precondition for official decisions of various kinds, such as permission to marry, permission to obtain an abortion or the award of certain national financial benefits. In the investigators view, an express stipulation of this kind amounts to a quasi-coercive situation, which should entitle the person concerned to receive compensation. In the cases hitherto described by the investigator, it should be possible for the individual to show that he or she was sterilised in the situations referred to. /OR OMISSION BY A PUBLIC AUTHORITY Even though a very large proportion of the persons sterilised against their will or on the initiative of a third party will be able to obtain compensation with reference to the case categories already presented, compensation is also justified in several other cases where the individual was induced by public authorities to apply for sterilization in a way which, with the present way of looking upon things, must be considered improper. This applies, firstly, to situations when a person was sterilised on grounds of antisocial living. In many such cases it can be assumed that sterilization took place after pressure in various ways had been exerted by public authorities, e.g. through the threat of taking charge of the persons children as an alternative to sterilization. The investigator also has in mind situations where women underwent sterilization after persuasion in connection with an abortion, and without any eugenic indications. Persuasion of this kind may also have occurred in close conjunction with childbirth. It is true, that these acts of persuasion may have differed in character. Sometimes the question of sterilization was made the subject of a general discussion between social workers, physicians and the individual as an option for solving what was primarily a social problem. Even if it is not automatically true that discussions of this kind, with public officials suggesting and recommending sterilization, should be automatically regarded as undue persuasion or influence, discussion in these terms often seems alien to our present way of thinking. The investigator considers it vitally important that women who, in connection with abortion or childbirth, were subjected to coercion or strong persuasion and then consented to be sterilised should also have the possibility of receiving compensation. At the same time, the investigator does not consider it possible for compensation to be paid to all persons who, for example, were sterilised in connection with an abortion, because there is no doubt that there were also many voluntary sterilizations in these connections. Between 1944 and 1964, according to figures from , some 4,000 women were sterilised under the conditional of the Abortion Act. Instead, the individual person must, with reference to the situations which may be involved, such as sterilization on account of antisocial living or in connection with abortion or childbirth, add some circumstance suggesting that he or she was subjected to influence by public authority to consent to sterilization or, in legal terms, MAKE PROBABLE that he or she consented to sterilization while under undue influence or as a result of omission in the part of a public authority. Legally speaking, this is a very slight evidential requirement. Official influence should have implied some form of undue influence, such as pressure/persuasion or misleading information. The public authority can also have been guilty of negligence, e.g. by neglecting to investigate whether undue influence had been exerted by some other party, such as an individual physician or next-of-kin, and by neglecting to provide the individual person with necessary support in a difficult situation. If the individual can make probable, he or she shall be entitled to compensation. Along the same line the investigator wishes to emphasize that an assessment today must to a very great extent be based on the individual persons own statements and experiences, e.g. of treatment at the hands of persons in authority. It will probably often be difficult to obtain clear evidence of unjustified pressure from official records. Considerable priority must be given to the way the sterilised individual has interpreted the conduct of the authorities. Accordingly, in doubtful cases where the supportive documentation is sparse and/or difficult to interpret, the authority, which is to handle the matter of compensation, ought rather to award compensation than refuse a request. In several cases, sterilization was performed in conjunction with abortion and without permission being obtained from . Section 5 of the 1941 Sterilization Act made room for sterilization without such permission if, in connection with abortion, the physician established, on grounds, that illness or physical defects would seriously endanger the womans life and health in the event of a Sterilization of this kind could also have been performed by authority of a certificate issued by two physicians, and provided in Section 3(2) of the same Act. That provision made it possible for a woman to be sterilised by her own consent if a indication for sterilization existed by reason of physical illness or defect, and if two physicians, one of them being the physician who performed the operation, certified that the requisites were met. Also in these situations too, the individual may have been subjected to such pressure that the sterilization was not voluntary, and so the question of compensation may of course arise on the grounds, which the investigator has already indicated. #OMPENSATION CLAIMS PREVIOUSLY HANDLED BY THE 'OVERNMENT Between 1983 and 1996, the Government has awarded compensation previously, on compassionate grounds, to 17 sterilised persons. In most of these cases the compensation award amounted to in current- price terms. In these cases the Government had established that there had been errors in the handling procedure. The compensation then awarded was lower than the investigator is now proposing. In the investigators opinion, the persons who previously received compensation should not be excluded from the amount of compensation now proposed. A deduction should be made, however, for any previous payment. In this way, injured parties who have previously been less in claiming compensation will not be disfavoured. The Government has rejected 21 compensation claims. In the investigators opinion it is self-evident that the authority which the investigator proposes should handle compensation claims should reconsider these cases. 3TERILIZATION NOT PERFORMED UNDER THE !CT OR PERFORMED BEFORE The investigator has found that, both before 1935 and between 1935 and 1941, sterilizations were performed without legal authority. The legality of these operations was discussed during the 1920s and 1930s, but no legal action was taken against physicians who sterilised individual persons by their request or with their consent. There were also instances before 1935 of mental patients admitted to institutions being sterilised; these cases have been documented both in previous investigations and research reports and in articles published in the journal . Although, formerly speaking, the present remit concerns implementation of the 1934 and 1941 Sterilization Acts and the issue of compensation applied to persons sterilised under those Acts, it is unreasonable in the investigators opinion that persons sterilised against their will or on the initiative of a third party before 1935 or outside the scope of the 1934 Act should be refused compensation on these formal grounds. The very fact that such sterilizations could be considered unpermissible or dubious, and that statutory provisions were discussed and introduced, argues for the award of compensation also in these cases. Thus the investigator considers that the proposals concerning compensation - on the conditions which the investigator has already indicated - must also apply to persons sterilised before 1935 or sterilised between 1935 and 1941 without reference to the 1934 Act. Standard or individual compensation? It is difficult to penetrate and assess the suffering of individual persons and to grade that suffering with regard to the circumstances of the individual case. such assessment is bound to be highly subjective. It is true that assessments of this kind are made from time to time by courts of law and public authorities in various compensation cases, but here, the concern events, which may have occurred perhaps more than 50 years ago. This makes the assessment highly dependent on the ability of the individual today to express his or her feelings and experiences and on what facts are recorded in application papers and records. Consequently there is a great risk that the persons who were sterilised feel that they have been unfairly treated if a public authority today is to carry out an individual assessment of their suffering. can one disregard the fact that a proposal in favour of standard compensation would greatly facilitate the handling of compensation issues, thereby making it possible for compensation to be paid more rapidly. This, in the investigators view, is a strong argument against individualised compensation and in favour of standard compensation. The investigator has not found any other reasons for differentiating compensation, e.g. according to age or sex. In conclusion, the investigator is of the opinion that the amount to be paid should be a standard rate, the same for everybody. The amount of compensation The very fact of the State acknowledging that the wording of the 1934 and 1941 Sterilization Acts and their practical implementation were characterised by a view which we today reject is of course calculated to vindicate the persons who are affected by the legislation. This, however, can only partly alleviate the suffering to which many people were exposed, therefore it is natural that those who were sterilised against their will or on the initiative of a third party should also receive economic recompense, even though this can never entirely offset the individual persons suffering. Compensation, therefore, will above all serve a symbolic purpose. At the same time, the investigator has found it natural to link up such compensation to the compensatory systems applied in today with regard to insurance compensation and damages. Compensation based on these principles and paid on this scale is also in with the practice existing in other Nordic countries. The payment of compensation on the scale occurring in North American action of damages is, on the other hand, alien to the Scandinavian legal tradition. Those amounts of damages are based on other legal principles and on quite different economic premises. The investigator concludes that the compensation which coercively sterilised persons ought to receive shall at all events correspond to what a person today suffering sterility as a result of a crime or accident receives in the form of disability compensation within the scope of civil law damages for disfigurement and disability. This compensation today amounts to approximately . The investigator has found that the authorities have in several instances been exceeded their powers when applying the law. As has already been shown, the procedure whereby sterilization was made a condition for discharge from penal and other institutions was already criticised by the Parliamentary Ombudsman in 1947. On that occasion the Ombudsman noted that the practice had no support in the statutory text and did not appear even to have been supported in the preparatory works Although it is impossible to tell exactly how many sterilizations were performed in conflict with the legislation, the investigator can at any rate observe that implementation was in several cases at variance with both the statutory text and the preparatory works Public authorities and individual persons in authority induced the individual - also, for example, through pressure, persuasion and other forms of indirect coercion - to sign an application for or a form of consent to sterilization. In such cases the procedure, even if it was not at variance with the legislation and appears to have had some support from directions by , seems at any rate to have lacked the consideration and caution by which it should have been characterised, as the Parliamentary Ombudsman expressed the matter at the time. Even if the handling of sterilization cases was not directly in conflict with the legislation, many of the sterilization decisions were made on grounds clearly contrary to the present-day legal view concerning the rights of the individual. In this connection it can be mentioned that the Government already stated, in the terms of reference for the Commission appointed in 1972 to review the 1941 Sterilization Act, that the Act then in force was based on different values and social conditions from those prevailing in 1972. On that occasion the Government also indicated that the practice had changed, in such a way for example that the eugenic and social indication had steadily declined and that their practical significance must now, in 1972, be considered fairly marginal. The Government added that this development had no doubt been very much due to a growth of awareness concerning the value of sustaining and strengthening respect and safeguards for the privacy of the individual and with a correspondingly growing reluctance on the part of public authorities and individual persons to initiate or otherwise be a party to decisions of measures greatly affecting the person and family circumstances of the individual. The investigator thinks that what has now been said constitutes sufficient reason for the State paying, over and above disability compensation, an amount corresponding to compensation for the suffering or humiliation to which the individual person was subjected. The amount of that payment should at any rate be comparable to normal compensation in criminal proceedings for the violation entailed by rape, i.e. , but it ought to be set somewhat higher. In this connection, however, the investigator wishes to emphasize that there are today no legal foundations to impose on any individual person or on the State any legal liability that would confer entitlement to such compensation. In conclusion, the investigator proposes that a compensatory payment of should be made to each individual who was sterilised against his or her will or on the initiative of a third party. In this connection it should also be mentioned that, in with general principles, the compensatory payment is tax-free. As has already been mentioned, those persons who have previously obtained compensation from the Government or whose requests for compensation have been refused should have their cases reconsidered. In cases where compensation has been awarded previously, it has been lower than the amount, which the investigator now proposes. To avoid a situation where injured parties who have been less previously in claiming compensation are disfavoured, the investigator proposes that compensation awarded previously be deducted from the amount which is now proposed. On the other hand, the payments made previously should not be written up to the present-day level of prices. Many of the persons who have written to the Government or the investigator on account of the debate on sterilization have not expressly indicated any compensatory amount in their letters. Those who have done so have for the most part requested amounts of between and 200,000. One or two persons have requested more, in the occasional instance up to about . The investigator realises that not even compensation on the scale now proposed will be universally regarded as reasonable recompense for the humiliation and suffering to which many people have been subjected. The investigator hopes and believes, however, that in striking a balance between individual suffering and the principles of compensation applied, for example, in tort cases or in legal claims for damages both in and in other Nordic countries, the amount of compensation proposed will, on the whole, be found acceptable. At the same time it is important to mention that many of the people writing to the investigator have above all expressed a for vindication and for an apology from the State. The amount now proposed is, in the investigators opinion, high enough to manifest the intention of indemnifying the victims. 2EMARKS CONCERNING THE #ASTRATION !CT Since the Castration Act, which is still in force, began to be applied in 1944, some 400 persons have been castrated, most of them between 1944 and 1970. For about 20 years now the Act has been applied exclusively to persons wishing to change their sex. In this connection the investigator wishes to endorse views expressed previously, to the effect that the Castration Act no longer serves any purpose and should be repealed. The investigator also wishes to draw the Governments attention to the fact that research material studied by the investigator suggests that castration have sometimes been performed as an alternative to sterilization, almost exclusively on men coercively admitted to certain institutions. Castration has been made a condition of their discharge from the institution. The Castration Act of 1944, still in force, shows in other words similarities to the Sterilization Act of 1941, abolished in 1975. Pressure and coercion seems to have occurred similar to the application to the Sterilization Act in some cases. This motivates deliberations if persons castrated could be eligible for some form of financial compensation corresponding to that which the investigator now propose for sterilised persons. The investigators task is to put forward a proposal concerning the way in which handling and decision of compensation cases will be organized. To the best of the investigators knowledge at present, 200 applications for compensation will at any rate come to be considered. It is very hard to estimate how many more persons will request compensation. Some indication of the number of additional persons who will be requesting compensation will be obtained after this report has been presented. The compensation question will at any rate require an organisation capable of handling the matters for at least one or two years. The handling of cases must be both rapid and efficient as well as legally correct. This calls for an organisation with experience and knowledge of both legal and matters. Persons who are competent to deal with these questions must staff the organisation. The staff must have had previous experience of making assessments from earlier, often hand-written records. It should also have knowledge of compensatory questions. The organisation must also include expertise concerning legal safeguards and matters of administrative law, as well as confidentiality aspects.