Disability, abnormality and criminal law: sterilisation as lawful and ‘good’ violence

Abstract

This article analyses the place of the intersections of the criminal law of assault and the Family Court's 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 article's 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.

Acknowledgements

This article draws on a submission made to the 2012–2013 Senate Community Affairs References Committee Inquiry into the Involuntary or Coerced Sterilisation of People With Disabilities in Australia. Thanks to Nan Seuffert and Elaine Newby for their comments on earlier drafts and to the anonymous reviewers for their helpful feedback.

Notes

¹ See, for example, Goodley and Runswick-Cole (2011); Hughes et al (2012); Dowse et al (2013); Roulstone and Mason-Bish (2013); see also Olle (2006) on the role of violence in causing disability in women and girls.

² See, for example, Women With Disability Australia et al (2011); Australian Human Rights Commission (2012); Broderick (2012); Méndez (2013) at [48] (citing A/64/272 at [55]). It is acknowledged that men and boys with disability are also subjected to sterilisation. However, research has established both empirically and discursively significant gendered dimensions of sterilisation such that it is appropriate to restrict the analysis in this article to the sterilisation of females. On the sterilisation of males with disability, see Keywood (2001, 2002); Savell (2004). For a historical discussion in the US context, see Jarman (2012).

³ French et al (2009); Women With Disability Australia et al (2011); Australian Human Rights Commission (2012); Broderick (2012); Frohmader (2013).

⁴ Méndez (2013) at [48]. See, generally, Frohmader (2013), p 70.

⁵ Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 at 444.

⁶ While common assault is grounded in the common law, aggravated assault offences are legislatively based. See, for example, in the context of New South Wales, the Crimes Act 1900 (NSW), Pt 3 Div 8.

⁷ DPP v Smith [1961] AC 290 at 334 (Viscount Kilmuir LC) (which is defined to include ‘any permanent or serious disfiguring of the person’): Crimes Act 1900 (NSW) s 4 ‘grievous bodily harm’.

⁸ For example, in the New South Wales statutory context, sterilisation could constitute the offence of ‘grievous bodily harm with intent’ which carries a maximum penalty of 25 years imprisonment: Crimes Act 1900 (NSW) s 33(1)(b).

⁹ Senate Community Affairs References Committee (2013).

¹⁰ Senate Community Affairs References Committee (2013), pp xiii–xiv.

¹¹ ‘Girls’ refers to female persons aged under 18 years.

¹² This approach to ‘good violence’ can be compared to a more literal and material approach to good violence pursuant to which the violence performed by law through sterilisation itself can and should be characterised as good.

¹³ See, however, Alfieri's (1994) discussion of the legal violence involved in his client ‘Wanda Field's’ court matter related to an application for Supplemental Security Income for the Aged, Blind, and Disabled, based in part on her illiteracy (which was inextricably linked to her race and poverty); see also reference to sterilisation as legal violence in Hunter (2006), p 33. See also the references to state violence (which is described in terms which overlap with legal violence) and ableism in Spade (2011), pp 87–90, and the discussion of legal violence in the context of the civil law on medical treatment for individuals in ‘vegetative’ states in Wald (1995), pp 88–92.

¹⁴ See, however, Hunter (2006, p 33) who has specifically identified court ordered sterilisation of young women with intellectual disability as a form of legal violence; see also Steele (2013).

¹⁵ Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218 (Marion's Case) at 254–259 (Mason CJ, Dawson, Toohey and Gaudron JJ) (referring to the previous provision s 64(1) of the Family Law Act 1975 (Cth) as it then was).

¹⁶ Marion's Case at 237 (Mason CJ, Dawson, Toohey and Gaudron JJ), approving Gillick v West Norfolk AHA [1986] AC 112 at 183–184 (Lord Scarman).

¹⁷ Marion's Case at 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

¹⁸ Marion's Case at 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

¹⁹ Marion's Case at 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

²⁰ Family Law Act 1975 (Cth) s 60CC(2A).

²¹ Family Law Act 1975 (Cth) s 60CC(3).

²² Re Marion (No 2) (1992) 17 Fam LR 336.

²³ Re Marion (No 2) (1992) 17 Fam LR 336.

²⁴ Marion's Case at 259 (Mason CJ, Dawson, Toohey and Gaudron JJ).

²⁵ Marion's Case at 262 (Mason CJ, Dawson, Toohey and Gaudron JJ), see also 317, 318 (McHugh J). This can be compared to Brennan J who dissented on whether the Family Court could authorise a non-therapeutic sterilisation and who was of the view that authorisation should not be viewed as substituted consent: Marion's Case at 267–268 (Brennan J).

²⁶ On legal violence generally, see Cover (1986); Sarat and Kearns (1992); Sarat (2001).

²⁷ Sarat and Kearns (1992), p 1; Sarat (2001), p 3.

²⁸ See also Alfieri's (1994) argument about the ‘words’ of lawyers involved in legal process leading up to the judge's decision.

²⁹ Cover (1986), p 1611.

³⁰ Cover (1986), pp 1608–1609, 1618–1628; see also Wald (1995), pp 81–83.

³¹ See, generally, Golder (2004, 2012).

³² Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 at 444.

³³ See, for example, in New South Wales, the Crimes Act 1900 (NSW) s 61AA.

³⁴ Collins v Wilcock [1984] 3 All ER 374; Boughey v R (1986) 161 CLR 10.

³⁵ It is important to note that there is some contention in the UK commentary concerning whether the cases characterise consent as a defence or the absence of consent as an element of the actus reus of the offence of assault. See, for example, Simester et al (2010), p 428; Wells and Quick (2010), p 249; see also Moran (1995), pp 229, 233; R v Brown [1994] 1 AC 212 at 246–247 (Lord Jauncey of Tullichettle).

³⁶ R v Brown [1994] 1 AC 212 at 231 (Lord Templeman), see also 244–245 (Lord Jauncey of Tullichettle).

³⁷ R v Coney (1882) 8 QBD 534 at 539 (Cave J), 549 (Stephen J); R v Donovan [1934] 2 KB 498 at 507 (Swift J); Attorney-General's Reference (No 6 of 1980) [1981] QB 715 at 719 (Lord Lane CJ); R v Brown [1994] 1 AC 212 at 231–234 (Lord Templeman). Actual bodily harm is defined as having ‘its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor’ which ‘need not be permanent but must, no doubt, be more than merely transient and trifling’: R v Donovan [1934] 2 KB 498 at 509. Grievous bodily harm is more serious level of harm than actual bodily harm and is defined as ‘really serious’ harm: DPP v Smith [1961] AC 290 at 334 (Viscount Kilmuir LC).

³⁸ R v Billinghurst [1978] Crim LR 553.

³⁹ Attorney-General's Reference (No 6 of 1980) [1981] QB 715.

⁴⁰ R v Wilson [1996] 3 WLR 125.

⁴¹ R v Brown [1994] 1 AC 212 at 231 (Lord Templeman), 243, 244–245 (Lord Jauncey of Tullichettle), 258–259, 266 (Lord Mustill).

⁴² Marion's Case at 262 (Mason CJ, Dawson, Toohey and Gaudron JJ), see also 317, 318 (McHugh J). Note also that consent is not required if the surgery is conducted in an emergency: Bronitt and McSherry (2010), pp 592–593.

⁴³ In the context of family law, see Family Law Act 1975 (Cth) s 67ZC. For an overview of the relevant guardianship laws in the various Australia state and territory jurisdictions, see Senate Community Affairs References Committee (2013), pp 68–80. For an overview of the various state and territory guardianship jurisdictions more generally, see O'Neill and Peisah (2011) Ch 12, Ch 15.

⁴⁴ Whereas criminal law is ‘reactive’ in responding to unlawful acts of contact, the Family Court is ‘prospective’ in providing the consent to contact to prevent these acts of contact being unlawful and hence outside the reach of reactive criminal law: Bridgeman (1995), p 133. This is slightly different to the Family Court determining unlawfulness and providing declaratory relief to this effect, but rather it provides one aspect to avoid the elements of the offence. On this relationship generally, see Bridgeman (1995).

⁴⁵ See, for example, R v Coney (1882) 8 QBD 534 at 549 (Stephen J), see also 553 (Hawkins J), 567 (Lord Coleridge CJ).

⁴⁶ Attorney-General's Reference (No 6 of 1980) [1981] QB 715 at 719 (Lord Lane CJ).

⁴⁷ Attorney-General's Reference (No 6 of 1980) [1981] QB 715 at 719 (Lord Lane CJ).

⁴⁸ Re fighting (including professional prize fighting), see R v Coney (1882) 8 QBD 534, 539 (Cave J), 549 (Stephen J); Attorney-General's Reference (No 6 of 1980) [1981] QB 715 at 719 (Lord Lane CJ). Re consensual sadomasochism (and consent), see R v Donovan [1934] 2 KB 498 at 507 (Swift J); R v Brown [1994] 1 AC 212 at 231–234 (Lord Templeman); R v Wilson (1966) Crim LR 573, but see R v Emmett (unreported [1999]) EWCA Crim 1710 (18 June 1999). Re parental chastisement, see R v Billinghurst [1978] Crim LR 553.

⁴⁹ Re homosexual consenting adults, see R v Brown [1994] 1 AC 212. Re heterosexual consenting partners, see R v Emmett (unreported [1999]) EWCA Crim 1710 (18 June 1999).

⁵⁰ See similar point made by Golder (2004, 2012) in the context of murder.

⁵¹ See, for example, Bibbings (2000), pp 237–243; see, generally, Moran (1995). On the relationship between gender, sexuality, violence and criminal law more broadly, see Golder (2004, 2012).

⁵² Allen (2005), p 94.

⁵³ See, for example, Corker and French (1999); Corker and Shakespeare (2002); Tremain (2002, 2005); Campbell (2009); Shildrick (2009).

⁵⁴ See, generally, Shildrick (2009); Desjardins (2012); McRuer and Mollow (2012).

⁵⁵ Hall (2011), p 4.

⁵⁶ Naffine (2009), p 149.

⁵⁷ Collins v Wilcock [1984] 3 All ER 374.

⁵⁸ Collins v Wilcock [1984] 3 All ER 374 at 378.

⁵⁹ Naffine (1997), pp 84–85; Golder (2004), pp 57–58; Savell (2004), p 1106; Naffine (2009), p 148. On legal boundaries and autonomy generally, see Nedelsky (1989, 1990).

⁶⁰ Scarry (1990), p 868.

⁶¹ Naffine describes the centrality of these two social norms to the law of assault as follows: ‘[…] we can discover at the heart of the law of human contact is a quite particular idea of a bounded, embodied subject, … the person presupposed by the law of assault is a discrete, distinct, volitional subject for whom the skin of his body is considered to represent a boundary from other distinct subjects … People are essentially bounded and separate, they come in closed body bags, and it is vital that one person not interfere with the body bag of another unless there is a positive agreement to make contact’: Naffine (1997), p 84; see, generally, pp 84–85.

⁶² Lacey (1998), pp 57–58; see also Lacey (2000), pp 96–97. See also the distinction between mind and body in the context of the defendant and the primacy of mens rea as a rationale for criminal responsibility and punishment in Lacey (1997), p 73; Lacey (1998), pp 54–62; Rollinson (2000).

⁶³ Lacey (1998), p 59.

⁶⁴ Naffine (2009), p 144.

⁶⁵ Scarry (1990), p 871.

⁶⁶ As Naffine (1997, p 86) states: ‘What the criminal law of human contact presupposes is a standard, uniform, bounded human body which is really an extrapolation from a certain liberal conception of the male body, not a woman's body’..

⁶⁷ Savell (2004), pp 1106–1197; see also Golder (2004) who notes that the body of criminal legal subject is not only male, but more specifically heterosexual male due to the permeability of the homosexual body.

⁶⁸ See, for example, Naffine (2009), p 156 (and subsequent elaboration in the context of pregnancy, pp 157–160).

⁶⁹ Naffine (1997), p 86.

⁷⁰ Naffine (1997), p 84.; see also Golder (2004), pp 59–60.

⁷¹ As Naffine (2009, pp 158–159) observes: ‘[t]hey demonstrate a palpable failure to keep their bodies intact, to demonstrate bodily integrity with its associated dignity’.. On the ‘leakiness’ of children with disability, see Goodley and Runswick-Cole (2013). On the ‘leakiness’ of women with disability, see Shildrick (1997, 2002). See also Hall (2011), p 5, Garland-Thomson (2011), p 20.

⁷² Naffine (2009), p 149, see also p 155.

⁷³ Thomas (2005), p 509.

⁷⁴ Keywood (1995), p 144; Méndez (2013) at [66].

⁷⁵ Lacey (1998), p 61.

⁷⁶ Naffine (2009), pp 66, 69, 82, 92.

⁷⁷ On devaluation and abnormality generally see, for example, Garland-Thomson (2011), pp 17–18. For a similar point made in the context of rights and citizenship, see Carey (2009), p 216.

⁷⁸ Marion's Case at 233 (Mason CJ, Dawson, Toohey and Gaudron JJ); see also 309–310 (McHugh J).

⁷⁹ Marion's Case at 233 (Mason CJ, Dawson, Toohey and Gaudron JJ).

⁸⁰ Marion's Case at 234 (Mason CJ, Dawson, Toohey and Gaudron JJ); see also 310 (McHugh J).

⁸¹ Schloendorff v Society of New York Hospital (1914) 105 NE 92.

⁸² Schloendorff v Society of New York Hospital (1914) 105 NE 92 at 93 (Cardozo J).

⁸³ Marion's Case at 234 (Mason CJ, Dawson, Toohey and Gaudron JJ).

⁸⁴ Marion's Case at 234 (Mason CJ, Dawson, Toohey and Gaudron JJ).

⁸⁵ Marion's Case at 235–249 (Mason CJ, Dawson, Toohey and Gaudron JJ).

⁸⁶ Marion's Case at 249 (Mason CJ, Dawson, Toohey and Gaudron JJ); see also 253 (Mason CJ, Dawson, Toohey and Gaudron JJ).

⁸⁷ Marion's Case at 262 (Mason CJ, Dawson, Toohey and Gaudron JJ).

⁸⁸ Marion's Case at 253 (Mason CJ, Dawson, Toohey and Gaudron JJ).

⁸⁹ For a detailed critique of these ‘practical exigencies’, see Steele (2008).

⁹⁰ Moran (1995), p 234; see also Pugliese (2013), pp 6–8.

⁹¹ Moran (1995), p 234; see also Wald (1995), p 78.

⁹² Moran (1995), p 234.

⁹³ See, for example, Steele (2008). On the ‘leakiness’ of children with disability more generally, see Goodley and Runswick-Cole (2013). On the ‘leakiness’ of women with disability more generally, see Shildrick (1997, 2002); see Kafer (2013), pp 55–66 in the context of the US case of ‘Ashley X’.

⁹⁴ Naffine (2009), p 147.

⁹⁵ Naffine (2009), p 147.

⁹⁶ Keywood (1995), pp 125, 130–131; Keywood (2002), p 29.

⁹⁷ They also breach norms of temporality at the intersection of gender, sexuality and age insofar as their minds are developing at a slower rate than their bodies: see point made by Kafer (2013, pp 48–49, 53–57) in the context of the US case of ‘Ashley X’; see also Kittay (2011). See also Savell (2004, pp 1097–1098) in the context of the castration sterilisation of a male with intellectual disability. As Goodley and Runswick-Cole (2013, p 2) state: ‘Children with impairments may challenge norms and goals associated with expected child development and psychological standards of what counts as a maturing body’..

⁹⁸ See, for example, Garland-Thomson (2011), p 21; see also Hall's (2011, p 6) similar point in the context of the US case of ‘Ashley X’.

⁹⁹ Alison Kafer (2013, p 27) refers to this as the ‘curative imaginary’ that is there is ‘an understanding of disability that not only expects and assumes intervention but also cannot imagine or comprehend anything other than intervention’..

¹⁰⁰ Given the historical centrality of race to sterilisation, it is acknowledged that this article has not engaged with the question of the presence or absence of race (including whiteness) in the judicial representations of the sterilised girls. See, for example, Williams in Kafer (2013), p 66. On the history of race and sterilisation in the US context, see Jarman (2012). However, none of the families in the 2001 Australian Human Rights Commission Report indicated Indigeneity: Brady et al (2001) Ch 3.

¹⁰¹ Re P (1995) 126 FLR 245.

¹⁰² ‘We are unconvinced that there is any relevant conclusion to be drawn with regard to the best interests of a particular child by an artificial exercise which compartmentalises a finding of fact about an immutable characteristic and then hypothesises that it were not so’: Re P (1995) 126 FLR 245 [emphasis added]. These ideas surface again in the recent Senate inquiry's rejection of a ‘but for’ test as opposed to a ‘best interests’ test: Senate Community Affairs References Committee (2013), p 131.

¹⁰³ Sarat and Kearns (1992), p 4.

¹⁰⁴ Sarat (2001), p 6; see also Sarat and Kearns (1992), pp 3–4.

¹⁰⁵ Marion's Case at 249 (Mason CJ, Dawson, Toohey and Gaudron JJ) [emphasis added].

¹⁰⁶ See, generally, Senate Community Affairs References Committee (2013), pp ix–xiv.

¹⁰⁷ Hunter (2006), p 30.

¹⁰⁸ See, for example, Naffine (2009), pp 69, 92–94.

¹⁰⁹ The majority in Marion's Case do acknowledge the significance of the framing of sterilisation in medical terms when they state that ‘to characterise intervention comprising sterilisation as “medical treatment” is already to make assumptions and to narrow the inquiry, perhaps inappropriately’ because sterilisation ‘implies more than medical, or surgical, treatment’. Yet the majority still use terms such as ‘procedure’ and draw on medical evidence, all of which confirms its medical character: Marion's Case at 232 (Mason CJ, Dawson, Toohey and Gaudron JJ).

¹¹⁰ See a similar point about the effect of the discourse of medical science in the context of state violence through torture involving medical personnel in Pugliese (2013), p 8.

¹¹¹ Mason CJ, Dawson, Toohey and Gaudron JJ in Marion's Case (at 232) even note ‘to characterise intervention comprising sterilisation as “medical treatment” is already to make assumptions and to narrow the inquiry’. They later comment that the question of sterilisation ‘has been “medicalised” to a great degree’ and that one concern that emerges from this is that ‘the decision to sterilise, at least where it is to be carried out for contraceptive purposes, and especially now when technology and expertise make the procedure relatively safe, is not merely a medical issue’ and is reflected in concerns raised in some of the cases that ‘the consequences of sterilisation are not merely biological but also social and psychological’ and involve a possible clash of the interests of the child and ‘the independent and possibly conflicting (though legitimate) interests of the parents and other family members’: Marion's Case at 251 (Mason CJ, Dawson, Toohey and Gaudron JJ).

¹¹² Garland-Thomson (2011), pp 22, 26; Goodley and Runswick-Cole (2011), p 603.

¹¹³ Savell (2004), p 1124.

¹¹⁴ Kafer (2013), pp 8–9; see also Steele (2008); cf Tobin and Luke (2013) the (arguably perverse) argument that involuntary, non-therapeutic sterilisation of girls with intellectual disability can be necessary to realise a girl's human right to health.

¹¹⁵ Garland-Thomson (2011), p 26, see further p 28; see also Kafer (2013), p 5.

¹¹⁶ See here the critique of the ‘medical model’ of disability: Shakespeare (2010); see also Campbell (2009).

¹¹⁷ Steele (2008), pp 11–16.

¹¹⁸ Marion's Case at 261 (Mason CJ, Dawson, Toohey and Gaudron JJ).

¹¹⁹ Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365. In Minister for Immigration and Multicultural and Indigenous Affairs, the court considered the scope of the welfare power provided by s 67ZC of the Family Law Act 1975 (Cth) in the specific context of Family Court orders sought by the parents of five children held in immigration detention directing the Minister to release these children. The court held that the Family Court does not have jurisdiction under the Family Law Act 1975 (Cth) to make orders against the Minister or other third parties relating to the treatment of the children in immigration detention. For example, Gummow, Hayne and Heydon JJ stated that ‘in its terms, s 69ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage’: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at [105], see also [53]–[54], [74], [110], [176]–[177], [204], [207]. In their reasons for judgment concluded that the Family Court's welfare jurisdiction was limited by s 67ZH which ‘confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage’: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at [74]. In their reasons for judgment, Gleeson CJ and McHugh J were of the view that the Family Court's welfare jurisdiction was not at large, and did not extend to the making of orders binding on third parties even when it would advance the welfare of the child to do so: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at [28], [50]–[54].

¹²⁰ Re Baby D (No 2) (2011) 258 FLR 290 at [193]; see also Re Alex (2009) 298 FLR 312 at [121], [113]–[130]; Re Sean and Russell (Special Medical Procedures) (2010) 258 FLR 192 at [66]–[75]; Re Inaya (Special Medical Procedure) (2007) 213 FLR 278 at [48]–[53]; Re Bernadette (2011) 249 FLR 294 at [55], see also [45]–[54].

¹²¹ Steele (2008), pp 11–16.

¹²² Steele (2008), pp 11–14.

¹²³ Keywood (2001), p 192; see also Keywood (1995); Goodley and Runswick-Cole (2013).

¹²⁴ Keywood (2002), pp 29–30; see also point made by Kafer (2013, p 65) in the context of the US case of ‘Ashley X’.

¹²⁵ Keywood (2001), p 192.

¹²⁶ Keywood (2001), p 193.

¹²⁷ Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365, at [28], [52] (Gleeson CJ and McHugh J), see further [53]. See also Secretary, Department of Health and Human Services v Ray (2010) 45 Fam LR 1 at [88]–[90].

¹²⁸ Steele (2008), pp 14–15; see similar point made by Kafer (2013, pp 60–62) in the context of the US case of ‘Ashley X’.

¹²⁹ Steele (2008), pp 14–16, 21–23, 33; see also Keywood (1995), pp 125, 135–138.

¹³⁰ Keywood (1995), pp 125, 130.

¹³¹ Family Law Act 1975 (Cth) s 60CA.

¹³² Re Baby D (No 2) (2011) 258 FLR 290 at [171].

¹³³ Family Law Act 1975 (Cth) s 60B(1)(b).

¹³⁴ Family Law Act 1975 (Cth) s 60CG(1)(b).

¹³⁵ From a slightly different angle, see Brennan J's dissenting comments concerning the relationship between the welfare jurisdiction and involuntary non-therapeutic sterilisation as criminal conduct: Marion's Case at 284–285 (Brennan J).

¹³⁶ In Re Marion (No 2) (1992) 17 Fam LR 336.

¹³⁷ See, generally, Senate Community Affairs References Committee (2013), pp ix–xiv.

¹³⁸ See also Hunter (2006), pp 45–46.

¹³⁹ Spade (2011, 2012); see also (in the context of females and homosexual males) Hunter (2006), pp 44–46.

¹⁴⁰ See, for example, Baldry et al (2012); New South Wales Law Reform Commission (2012); Australian Human Rights Commission (2013, 2014).

¹⁴¹ See, for example, Ribet (2010).

¹⁴² See, generally, Carey (2009), p 17.

¹⁴³ Hunter (2006), p 32 (in the context of violence against female and gay male bodies); see also Wald (1995), pp 92–96. In the context of the role of criminal law in sanctioning violence against homosexual males, see Thomas (1992); Golder (2012); in the context of law's sanctioning of violence against females and homosexual males, see Hunter (2006).

¹⁴⁴ See, for example, the issues facing people with disability who are victims of sexual assault: Keilty and Connelly (2001); Murray and Powell (2008); Murray and Heenan (2012).

¹⁴⁵ Scarry (1990), p 869, see generally pp 869–870.

¹⁴⁶ Kittay (2011). This article's analysis of sterilisation might also provide new openings into the use of Foucault's governmentality analysis vis-à-vis disability, abnormality and criminal law; see, for example, Golder (2012) in the context of governmentality, criminal law and homosexuality.

¹⁴⁷ See, generally, Bell (2015).

¹⁴⁸ Garland-Thomson (2011), p 18.

¹⁴⁹ Garland-Thomson (2011), pp 16–17.

¹⁵⁰ On feminism and ableism, see Lamp and Cleigh (2011), pp 175, 187.

¹⁵¹ Keywood (2002), p 31; Savell (2004), p 1096.

¹⁵² Goodley and Runswick-Cole (2011), p 612.