Linda Roslyn Steele

Disabling forensic mental health detention: The carcerality of the disabled body

“Disabling” forensic detention involves challenging the self-evidence of the meaning of disability in forensic mental health law, and in turn illuminating the significance of this meaning to the possibility and permissibility of forensic detention and other interventions in the bodies of people designated with cognitive impairments and psychosocial disabilities (“people designated as disabled”). I apply this approach to an examination of a case study of one individual subjected to forensic detention: an Indigenous Australian woman with Fetal Alcohol Spectrum Disorder, Roseanne Fulton. By examining Fulton’s forensic detention, in the context of her earlier life circumstances and her subsequent journey through various “alternatives” to this forensic detention I show the interrelationships of forensic detention with a range of legal options for punishing, regulating and intervening in designated as disabled bodies and situate these interrelationships in a broader range of issues of violence, institutional failure, social disadvantage, settler colonialism, and ableism. My central argument is that the ongoing subjection of Fulton to a range of forms of control across her life suggest that the possibility of forensic detention and other forms of punishment of people designated as disabled is not attached to a particular material architectural space or a particular court order, but instead attaches to these individuals’ bodies via medico-legal designations as disabled and travels with these individuals through time and space. I propose that more directly it is the disabled body that is the space of punishment and the disabled body makes material architectural spaces punitive. A “reform”, indeed even an “abolition”, approach focused on material architectural spaces of disabled punishment will not interrupt the ongoing processes of control of criminalized people designated as disabled if it does not also acknowledge and challenge the temporal and carnal logics underpinning the carcerality of the disabled body itself.

Disability, Abnormality and Criminal Law: Sterilisation as Lawful and 'Good' Violence

This article analyses the place of the intersections of the criminal law of assault and the Family Courts welfare jurisdiction in rendering Family Court authorised sterilisation of girls with intellectual disability a legally permissible form of violence. The article does this by examining court authorised sterilisation of girls with intellectual disability by reference to the concepts of ‘legal violence’ and ‘abnormality’. The articles central argument is that Family Court authorised sterilisation of girls with intellectual disability is a form of lawful and ‘good’ violence against abnormal legal subjects. Such girls are – by reason of their incapacity – positioned outside the group of ‘normal’ legal subjects of assault who have the capacity to decide to consent to contact with their otherwise ‘impermeable’ and legally sacrosanct bodies. As the girls with intellectual disability are deemed to constitute ‘abnormal’ legal subjects of assault, the lawfulness of the contact involved in the act of their sterilisation is not dependent on the consent of the girls themselves, but instead on the consent of their parents as authorised by the Family Court acting in its welfare jurisdiction. In the course of authorising parental consent to sterilisation, the Family Court not only renders an act of sterilisation ‘lawful violence’, but also ‘good violence’ through the characterisation of girls with intellectual disability as absolutely different to individuals without disability, and through the characterisation of the act in legal, familial and medical terms.

Disability at the periphery: legal theory, disability and criminal law

This special issue of the Griffith Law Review is dedicated to an examination of the relationships and intersections between disability, criminal law and legal theory. Despite the centrality of disability to the doctrines, operation and reform of criminal law, disability continues to inhabit a marginal location in legal theoretical engagement with criminal law. This special issue proceeds from a contestation of disability as an individual, medical condition and instead explores disabilitys social, political and cultural contexts. This kind of approach directs critical attention to questioning many aspects of the relationships between disability and criminal law which have otherwise been taken for granted or overlooked in legal scholarship. These aspects include the differential treatment of people with disability by criminal law, the impact of core legal concepts such as capacity on criminal legal treatment of people with disability, and the role of disability in ordering and legitimising criminal law. It is hoped that the special issue will contribute to the shifting of disability from its peripheral location in legal theoretical scholarship much more to the centre of critical and political engagement with criminal law.

Temporality, disability and institutional violence: revisiting In re F

ABSTRACT A recent suggestion of some disability legal scholars is to provide a non-discriminatory legal framework to regulate non-consensual medical and care interventions in relation to disabled people through adapting the doctrine of necessity. This article rejects this approach through a close reading of the leading decision on the doctrine of necessity in medical and care settings, In re F (Mental Patient: Sterilization) [1990] 2 AC 1. This decision confirms that any such suggestion for the application of the doctrine will impact disabled people differentially due to divergent legal constructions of temporality between disabled and able people. To use this doctrine in relation to ongoing disabled medical and care interventions the law constructs disabled people as being in a permanent state of mental incapacity. On the other hand, the doctrine of necessity constructs able people as temporarily mentally incapacitated from their usual state of autonomy, thus only requiring minimal medical and care interventions to return them to their prior state. Therefore, able people cannot, under this doctrine, lawfully be subject to similarly long periods of intervention and such a broader range of interventions. Application of the doctrine of necessity will thus exacerbate inequality of and violence against disabled people.

Policing normalcy: sexual violence against women offenders with disability

Abstract This article explores police responses to sexual violence reported by women offenders designated as having cognitive and psychosocial disabilities. The article does so by reference to the critical disability studies analytical approach to disability as socially constructed ‘abnormality’. This article utilizes this approach in analysing the recorded police contacts of one woman offender designated as disabled, ‘Jane’. Jane has had multiple contacts with police over a period of 15 years as a victim of sexual violence, alleged offender and ‘mentally ill’ person. The article finds that through multiple contacts with police as victim, alleged offender and ‘mentally ill’ person, the police events records build a narrative of Jane as an ‘abnormal’ body who is reduced to a drain on police and public health resources, a dishonest and nuisance offender and an attention seeker. The article argues that it is the interlocking discourses of gender, disability and criminality that produce Jane as unworthy of victim status and, perversely, in need of punishment by the criminal justice system for her public displays of trauma, mental distress and requests for police assistance. Ultimately, the article concludes that we need to give greater attention to the relationship between disability and affect, and to the broader cultural, institutional, legal and economic discourses that shape individuals’ affective responses, in understanding police responses to violence against women offenders designated as disabled and in contesting these women’s status as ‘ungrievable’ victims of violence.

Medical Bodies: Gender, Justice and Medicine

Interrogation of the body has been vital to the feminist project. Australian feminist scholars have been integral to these contestations and engagements with the body, and indeed, many of these critical interventions have appeared in the pages of Australian Feminist Studies. This special issue on ‘Medical Bodies: Gender, Justice and Medicine’ continues the journal’s role in supporting feminist theoretical and political engagements with the body. It achieves this by directing attention to questions of gender, bodies and justice (as well as injustice) in the contemporary medico-legal terrain. Both medicine and law have significant roles to play in achieving equality, well-being and human flourishing. Yet, each has long been critiqued by feminists for its role in producing injustice. Early feminist work often positioned medicine as an active contributor to female oppression (see, e.g. Arditti, Klein, and Minden 1984; Devin 1975; Klein and Dumble 1994; Raymond, Klein, and Dumble 1991) and this approach has endured in the context of an expansion in biotechnologies. More recent feminist work has focused on the ways in which medical knowledge and interventions with respect to women’s biological lives often form a nexus of biopolitical control and surveillance, including more repressive, ‘necropolitical’ (Mbembe 2003) acts of violence, disablement and death (Guenther 2012, 2016; Manderson 2012; Puar 2009; Sawicki 1999; Smith 2016; Waldby and Cooper 2008). The law does not stand outside of these processes. On the contrary, it can be complicit in medicine’s injustices towards women, whether through law’s deployment of medical knowledges to pathologise and depoliticise violence against women (Smart 1989) or through its power to legitimate medical interventions in and on women’s bodies. While such practices of regulation are longstanding, in contemporary contexts women’s bodies are entangled in these relations of law and medicine in ever more complex and inventive ways. For example, women’s bodies are regulated and produced with assisted reproductive technologies (ART) (e.g. surrogacy and pre-implantation genetic diagnosis), genetics (e.g. epigenetics and neurogenetics), pharmaceuticals, psychological diagnosis and neuroscience. Medicine in contemporary contexts ostensibly provides women with the potential for enhanced well-being, choice and freedom. Yet, as this special issue shows, running in parallel and inextricably bound up with these possibilities are new ways of enacting and rationalising injustice. There is a long history of feminist and feminist legal engagement with law vis-à-vis gender, bodies and justice (for an overview, see Fox and Murphy 2013; for specific examples of feminist legal scholarship, see Bridgeman and Millns 1995; Fletcher, Fox,

Gender, Disability Rights and Violence Against Medical Bodies

ABSTRACT We take as our point of intervention one category of violence which sits outside the forms of violence against women which are both currently prohibited by criminal law and the focus of violence against women campaigns: non-consensual medical interventions (or, as we refer to it, ‘lawful medical violence’). By drawing on critical disability studies, particularly feminist disability theory, we argue that lawful medical violence has been rendered socially and legally permissible because of the medicalisation of disabled women’s bodies and the related pathologisation of their behaviour and life circumstances. These processes sit at the intersection of gender and disability, drawing on gendered social norms of ability and sexuality to construct women with disability as genderless and dehumanised, and in turn depoliticising non-consensual medical interventions in these women’s bodies by reconstituting them as therapeutic and benevolent. In order to recognise and contest lawful medical violence as violence against women, mainstream feminist scholars and activists might consider turning to different legal, institutional and spatial sites of violence and challenging deeply embedded divisions and foundational concepts in law related to mental capacity.

Normality and disability: intersections among norms, law, and culture

This special issue of Continuum is published in a conjuncture where there is increased scholarly attention to the positioning as ‘abnormal’ of people designated as disabled, as well as people designated to other marginalized and denigrated categories (such as queer, chronic illness, racial and Indigenous minorities, poverty and criminality). Scholars have critiqued the cultural and material role of technologies of diagnosis and therapy, and discourses of biomedicine and science, in the construction of abnormality, as well as the significant and primary role of disability in positioning as abnormal certain bodies and subjects designated to other marginalized and denigrated categories (for example, through medicalizing and biologizing). The role of law in codifying, challenging, perpetuating and amending historical, material and institutional constructions of disability has also been the subject of much research, particularly highlighting the continuities and discontinuities with key other cultural conditions including settler-colonialism, imperialism, eugenics, reproductive rights, violence and torture, and contemporary forms of neoliberalism. In critiquing abnormality, scholars are drawing attention to the converse: normality.1 Normality is a privileged, yet strikingly vacant and difficult to define, category which gains its existence and status from its relationship to the constitutive disavowal of abnormality (Tremain 2005; Campbell 2009; Shildrick 2009). As Shakespeare (1994) puts it, disability functions as a ‘dustbin for disavowal’ for the category of normality. At the same time as this increased scholarly attention to disability, abnormality and normality, there have been complex and often contradictory political and legal developments. There has been recognition of individuals designated as disabled as entitled to enhanced human rights and legal protections, reflected in the United Nations Convention on the Rights of Persons with Disabilities and various domestic law reform inquiries. Survivor and self advocates have been particularly active in the disability rights movement and scholarship in engaging with rights discourses to reclaim and subvert ‘abnormality’, for instance, in ‘mad studies’ (LeFrançois, Menzies, and Reaume 2013). Yet, at a domestic, political and legal level discrimination, violence and disadvantage persists. Law also has the capacity to support the development and availability of technologies that support access for people with disability and for others, but in many circumstances law may also deny or limit their availability. There are a number of contemporary circumstances that might explain these political developments. One set of circumstances is that technological advancements, together with an increase in epistemological authority granted to scientific knowledge, are increasing the use of ‘objective’, scientific classification and certification of individuals as abnormal, frequently entrenching existing normative designations in the dominant cultural imaginary. Another set is geopolitical conditions such as the ongoing impacts of settler-colonialism, armed conflict, forced migration and international development that are themselves generating disability, extreme poverty and dislocation. A third set of circumstances is shifting political and policy conditions which are demanding the measurement of the economic worth and productivity of abnormal individuals and categories. Together these circumstances are placing people designated as disabled and other ‘abnormal’ individuals in situations of greater precariousness

Troubling Law’s Indefinite Detention: Disability, the Carceral Body and Institutional Injustice

Through a case study of the official state representation of the institutional life course of one Indigenous Australian woman who is disabled, I demonstrate that across multiple jurisdictions, lega...

Restrictive Practice in Education Settings: Institutional Violence, Disability and Law

The current legal framework governing restrictive practices in schools regulates, rather than prohibits, restrictive practices. The central aim of this chapter is twofold: (i) to provide an overview of the legal framework of the use of restrictive practices in schools, and (ii) to identify some critical entry points into questioning the self-evidence of this legal framework and consequently reframe restrictive practices in schools as a lawful form of institutional violence. The chapter begins by introducing restrictive practices in schools and then provides an overview of the current legal framework that regulates the use of restrictive practices, and ultimately positions these practices beyond legal definitions of unlawful violence and hence beyond legal liability. The chapter then discusses the United Nations Convention on the Rights of Persons with Disabilities and recent Australian government inquiries, which provide a strong policy basis for viewing restrictive practices as violence, which should be prohibited.