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ABSTRACT
Violence against people with intellectual disability is commonly understood to occur as a result of an individual’s heightened ‘vulnerability’, based on their disability status. Critical disability studies scholars have problematised ‘vulnerability’, critiquing this term as being socially produced and based in a negative ontology of disability. In this article, we critically reflect on the ways in which people with intellectual disability labels are subjected to structural violence via criminalisation and indefinite detention in prison through the operation of interlocking and multi-layered systems, such as police systems, prison systems, guardianship systems, and the operation of forensic mental health systems. We argue that vulnerability framings used by these systems serve to obscure the structural violence that they ultimately perpetuate. To conduct this analysis, we engage with a testimony: Sue’s story. Sue is an intellectually disabled woman, whose entry into the criminal legal system in Victoria begins with police contact and summary offence charges and ends in indefinite detention after an assessment of unfitness is made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA). Through an examination of Sue’s case and treatment under the CMIA, we argue that one of the key limitations of vulnerability theories is that notions of ‘vulnerability’ imply a need for protection that can both obscure and animate the use of carceral responses which reproduce harm and embed the ongoing debilitation of criminalised disabled people in society.
Acknowledgements
The authors would like to thank Dr Emma Russell for her generous feedback on an earlier version of this manuscript, and the anonymous reviewers and the editors of the Australian Feminist Law Journal for their insightful feedback and comments.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes
1 We have used the terms ‘people with disability’ and ‘disabled’ interchangeably in this article. As authors, we both identify with and hold a preference for identity-first language (‘disabled’), but have also used person-first language, (i.e., ‘people’ or ‘person with disability’) in recognition that this is the language advocated for by several Australian Disabled People’s Organisations and is the term almost exclusively used in Australian legislation and policy contexts.
2 Ryan Thorneycroft and Nicole L Asquith, ‘The Dark Figure of Disablist Violence’ (2015) 54(5) Howard Journal of Criminal Justice 489.
3 Lauren Krnjacki and others, ‘Prevalence and Risk of Violence against People with and without Disabilities: Findings from an Australian Population-Based Study’ (2016) 40(1) Australian and New Zealand Journal of Public Health 16.
4 Jessica Robyn Cadwallader and others, ‘Institutional Violence against People with Disability: Recent Legal and Political Developments’ (2018) 29(3) Current Issues in Criminal Justice 259.
5 Michel Foucault, Discipline and Punish: The Birth of the Prison (Pantheon Books 1977). Foucault’s work described a ‘carceral system’ that ripples out from the prison to the wider social body, and includes a range of institutions in a vast network of carceral spaces, which has been particularly generative for understanding the range of sites disabled people are incarcerated. Crystal McKinnon, an Amangu Yamatji scholar and community organiser, deploys the formation ‘carceral colonialism’ to understand the centrality of Indigenous dispossession from land to refugee detention as a project of the Australian settler colonial state, as well as Indigenous people’s ongoing resistance: Crystal McKinnon, ‘Enduring Indigeneity and Solidarity in Response to Australia’s Carceral Colonialism’ (2020) 43(4) Biography 691.
6 Liat Ben-Moshe, Chris Chapman and Allison C Carey (eds), Disability Incarcerated: Imprisonment and Disability in the United States and Canada (Palgrave Macmillan 2014) 3; Liat Ben-Moshe, Decarcerating Disability: Deinstitutionalization and Prison Abolition (University of Minnesota Press 2020).
7 The Terms of Reference specify that the purpose of the Royal Commission is to look all forms of violence, abuse, neglect, and exploitation of peopled with disability, in all settings and contexts: Commonwealth, ‘Commonwealth Letters Patent’ (4 April 2019) 2 <https://disability.royalcommission.gov.au/system/files/2022-04/Commonwealth%20Letters%20Patent%204%20April%202019.pdf> accessed 23 July 2022.
8 Cadwallader and others (n 4).
9 Slavoj Žižek, Violence: Six Sideways Reflections (Profile Books 2008).
10 Our use of the term ‘criminal legal system’ over the more commonly used phraseology, ‘criminal justice system’, is an intentional choice grounded in carceral abolition politics, which seeks to emphasise the lack of ‘justice’ this system entails.
11 See Chris Cunneen and others, Penal Culture and Hyperincarceration: The Revival of the Prison (Ashgate 2013); Chris Cunneen and Juan Tauri, Indigenous Criminology (Policy Press 2016); Linda Steele, Disability, Criminal Justice and Law: Reconsidering Count Diversion (Routledge 2020); Chris Cunneen, ‘Youth Justice and Racialization: Comparative Reflections’ (2020) 24(3) Theoretical Criminology 521.
12 Elena Marchetti, ‘The Deep Colonizing Practices of the Australian Royal Commission into Aboriginal Deaths in Custody’ (2006) 33(3) Journal of Law and Society 451.
13 Anwen Evans and Margaret E Rodgers, ‘Protection for Whom? The Right to a Sexual or Intimate Relationship’ (2000) 4(3) Journal of Learning Disabilities 237; Jorgen Sparf, ‘Disability and Vulnerability: Interpretations of Risk in Everyday Life’ (2016) 24(4) Journal of Contingencies and Crisis Management 244.
14 Frank Furedi, ‘Coping with Adversity: The Turn to the Rhetoric of Vulnerability’ (2007) 20(3) Security Journal 171; Rachel Fyson and Deborah Kitson, ‘Independence or Protection – Does It Have to Be a Choice? Reflections on the Abuse of People with Learning Disabilities in Cornwall’ (2007) 27(3) Critical Social Policy 426.
15 Margrit Shildrick, Embodying the Monster: Encounters with the Vulnerable Self (Sage Publications 2002); Judith Butler, Precarious Life: The Powers of Mourning and Violence (Verso 2004); Andrea Hollomotz, Learning Difficulties and Sexual Vulnerability: A Social Approach (Jessica Kingsley Publishers 2011); Andrea Hollomotz, ‘Disability, Oppression and Violence: Towards a Sociological Explanation’ (2013) 47(3) Sociology 477; Martha Albertson Fineman, ‘Equality, Autonomy, and the Vulnerable Subject in Law and Politics’ in Martha Albertson Fineman and Anna Grear (eds), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate Publishing 2013); Beverly Clough, ‘Disability and Vulnerability: Challenging the Capacity/Incapacity Binary’ (2017) 16(3) Social Policy & Society 469. For an overview of some of these debates, see Ryan Thorneycroft, ‘Problematising and Reconceptualising “Vulnerability” in the Context of Disablist Violent’ in Nicole L Asquith, Isabelle Bartkowiak-Théron and Karl A Roberts (eds), Policing Encounters with Vulnerability (Palgrave Macmillan 2017).
16 Margrit Shildrick, ‘Critical Disability Studies: Rethinking the Conventions for the Age of Postmodernity’ in Nick Watson, Alan Roulstone and Carol Thomas (eds), Routledge Handbook of Disability Studies (Routledge 2012) 30, 40.
17 Susan Wendell, ‘Unhealthy Disabled: Treating Chronic Illnesses as Disabilities’ (2001) 16(4) Hypatia 16; Michael C Dunn, Isabel CH Clare and Anthony J Holland, ‘To Empower or to Protect? Constructing the “Vulnerable Adult” in English Law and Public Policy’ (2008) 28(2) Legal Studies 234; Rebecca Fish, ‘“They’ve Said I’m Vulnerable with Men’: Doing Sexuality on Locked Wards’ (2016) 19(5–6) Sexualities 641.
18 Fiona AK Campbell, ‘Inciting Legal Fictions: “Disability’s” Date with Ontology and the Ableist Body of the Law’ (2001) 10(1) Griffith Law Review 42.
19 Andrea Hollomotz, Learning Difficulties and Sexual Vulnerability: A Social Approach (n 15); Christina Fitzgerald and Paul Withers, ‘“I Don’t Know What a Proper Woman Means”: What Women with Intellectual Disabilities Think about Sex, Sexuality and Themselves’ (2013) 41(1) British Journal of Learning Disabilities 5.
20 SM Rodriguez, Liat Ben-Moshe and H Rakes, ‘Carceral Protectionism and the Perpetually (In)vulnerable’ (2020) 20(5) Criminology & Criminal Justice 537.
21 Dick Sobsey, Violence and Abuse in the Lives of People with Disabilities: The End of Silent Acceptance? (Paul H Brookes Publishing 1994) 164–65.
22 Rodriguez, Ben-Moshe and Rakes (n 20) 537. See also Linda Steele, ‘Disability, Abnormality and Criminal Law: Sterilisation as Lawful and “Good” Violence’ (2014) 23(3) Griffith Law Review 467; Claire Spivakovsky, ‘From Punishment to Protection: Containing and Controlling the Lives of People with Disabilities in Human Rights’ (2014) 16(5) Punishment & Society 560; Linda Steele, ‘Disabling Forensic Mental Health Detention: The Carcerality of the Disabled Body’ (2017) 19(3) Punishment & Society 327; Claire Spivakovsky and Linda Roslyn Steele, ‘Disability Law in a Pandemic: The Temporal Folds of Medico-legal Violence’ (2022) 31(2) Social & Legal Studies 175.
23 David Graeber, ‘Dead Zones of the Imagination: On Violence, Bureaucracy, and Interpretive Labor’ (2012) 2(2) Journal of Ethnographic Theory 105, 112.
24 Žižek (n 9).
25 Cadwallader and others (n 4).
26 Crimes Act 1900 (ACT) pt 13; Criminal Law Consolidation Act 1935 (SA) divs 3, 3A; Criminal Code 1983 (NT) pt IIA; Mental Health (Forensic Provisions) Act 1990 (NSW); Criminal Law (Mentally Impaired Accused) Act 1996 (WA); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA); Criminal Justice (Mental Impairment) Act 1999 (Tas); Mental Health Act 2016 (Qld).
27 Victorian Ombudsman, ‘Investigation into the Imprisonment of a Woman Found Unfit to Stand Trial’ (October 2018) 55.
28 Office of the Public Advocate, The Illusion of ‘Choice and Control’: The Difficulties for People with Complex and Challenging Support Needs to Obtain Adequate Supports under the NDIS (2018).
29 Mindi Sotiri, Patrick McGee and Eileen Baldry, ‘No End in Sight: The Imprisonment and Indefinite Detention of Indigenous Australians with a Cognitive Impairment’ (Aboriginal Disability Justice Campaign, September 2012).
30 Martha Albertson Fineman, ‘The Vulnerable Subject and the Responsive State’ (2010) 60(2) Emory Law Journal 251.
31 By ‘intellectual disability’, we mean a disability that is thought to impact a person’s ability to learn and perform tasks of daily living. The fact that Sue is described as someone with a ‘complex presentation’ who has support needs in line with the intellectual disability community yet does not neatly fit into diagnostic or legal criteria under the Disability Act 2006 (Vic) or Mental Health Act 2014 (Vic) demonstrates the limits and pitfalls of diagnostic and medico-legal approaches to the experience of disability. Intellectually disabled people (alongside people with cognitive and psychosocial disabilities) face similar power structures but are often dealt with separately under legal doctrine in their interactions with the criminal legal system. See Linda Steele, Disability, Criminal Justice and Law: Reconsidering Court Diversion (n 11).
32 Australian Institute of Health and Welfare, Australia’s Welfare (2013) 3; Devon Indig and others, 2009 NSW Inmate Health Survey: Key Findings Report (Justice Health 2010) 135.
33 Victorian Ombudsman (n 27).
34 Office of the Public Advocate (n 28).
35 Victorian Ombudsman (n 27). The Victorian Ombudsman has the authority to conduct investigations of referred matters under section 16D of the Ombudsman Act 1973 (Vic). Section 16A provides the Ombudsman the power to investigate a matter referred, or information provided about an administrative action taken by or in ‘an authority’.
36 For an overview of guardianship law as part of Australia disability law, see Spivakovsky and Steele (n 22).
37 Eleanore Fritze, ‘The Variable Treatment of (In)Capacity in the Practical Operation of Victoria’s Key Substituted Decision-Making Regimes: View from the Frontline’ in Claire Spivakovsky, Kate Seear and Adrian Carter (eds), Critical Perspectives on Coercive Interventions: Law, Medicine and Society (Routledge 2018).
38 Jane McCarthy and others, ‘Defendants with Intellectual Disability and Autism Spectrum Conditions: The Perspective of Clinicians Working across Three Jurisdictions’ (2021) Psychiatry, Psychology and Law; Nicole Fedyszyn, ‘People with Intellectual Disabilities and Access to Justice’ (Submission No IDAJ37 to Victorian Law Reform Commission Inquiry into Guardianship Laws, 27 September 2011).
39 Office of the Public Advocate (n 28).
40 Unfitness to plead or stand trial is an area of criminal law that sees disabled people detained indefinitely, potentially for a longer period than if they person had been convicted and sentenced. Aboriginal and Torres Strait Islander people with cognitive disability face particular disadvantage under this area of law. See Piers Gooding and others, ‘Unfitness to Stand Trial and the Indefinite Detention of Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for Change’ (2017) 40(3) Melbourne University Law Review 816.
41 CMIA (n 26) s 1.
42 Victorian Ombudsman (n 27) 42.
43 Kriti Sharma, Elaine Pearson and Georgia Bright, ‘“I Needed Help, Instead I was Punished”: Abuse and Neglect of Prisoners with Disabilities in Australia’ (Human Rights Watch 2018) <www.hrw.org/report/2018/02/06/i-needed-help-instead-i-was-punished/abuse-and-neglect-prisoners-disabilities> accessed 9 November 2021.
44 Liat Ben-Moshe, ‘Why Prisons Are Not “the New Asylums”’ (2017) 19(3) Punishment & Society 272, 280–82; Beth Ribet, ‘Naming Prison Rape as Disablement: A Critical Analysis of the Prison Litigation Reform Act, the Americans with Disabilities Act, and the Imperatives of Survivor-Oriented Advocacy’ (2010) 17(2) Virginia Journal of Social Policy and the Law 281; Jasbir K Puar, The Right to Maim: Debility, Capacity, Disability (Duke University Press 2017).
45 Office of the Public Advocate (n 28).
46 The use of bodily restraints and seclusion in psychiatric settings is regulated and defined in the Mental Health Act 2014 (Vic), but chemical restraint is not. ‘Chemical restraint’ is defined in section 3 of Tasmania’s Mental Health Act 2013 as ‘medication given primarily to control a person’s behaviour’. While ‘chemical restraint’ is not currently regulated or defined under the relevant legislation in Victoria, research and the experiences of users, ex-patients and survivors of the mental health system indicates that the use of psychotropic medications to control behaviour is widespread. Recommendation 54(2) of the Royal Commission int Victoria's Mental Health System provides that chemical restraint will be regulated under Victoria’s new Mental Health and Wellbeing Act, to be enacted by the Victorian Government later in 2022. See Yvette Maker and Bernadette McSherry, ‘Regulating Restraint Use in Mental Health and Aged Care Settings: Lessons from the Oakden Scandal’ (2019) 44(1) Alternative Law Journal 29; Bernadette McSherry, ‘Regulating Seclusion and Restraint in Health Care Settings: The Promise of the Convention on the Rights of Persons with Disabilities’ (2017) 53 International Journal of Law and Psychiatry 39.
47 Martha Albertson Fineman, ‘Vulnerability and Inevitable Inequality’ (2017) 4(4) Oslo Law Review 133.
48 Ana Aliverti, ‘Benevolent Policing? Vulnerability and the Moral Pains of Border Controls’ (2020) 60(5) British Journal of Criminology 1117. For analysis in a US context, see Fineman, ‘The Vulnerable Subject and the Responsive State’ (n 30).
49 Department for Constitutional Affairs, Mental Capacity Act 2005: Code of Practice (2007) 246; Care Act 2014 (UK); Department of Health, ‘No Secrets: Guidance on Developing and Implementing Multi-Agency Policies and Procedures to Protect Vulnerable Adults from Abuse’ (2000).
50 Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (2014).
51 Fineman, ‘The Vulnerable Subject and the Responsive State’ (n 30).
52 Emily Hutcheon, Raidah Noshin and Bonnie Lashewicz, ‘Interrogating “Acquiescent” Behavior of Adults with Developmental Disabilities in Interactions with Caregiving Family Members: An Instrumental Case Study’ (2017) 32(3) Disability & Society 344. See also Fyson and Kitson (n 14).
53 Thorneycroft (n 2).
54 Stacy Clifford Simplican, The Capacity Contract: Intellectual Disability and the Question of Citizenship (University of Minnesota Press 2015).
55 Marta Russell and Jean Stewart, ‘Disablement, Prison, and Historical Segregation’ (2001) 53(3) Monthly Review 61.
56 Thomas Shakespeare, ‘Reviewing the Past, Developing the Future’ (1997) 58 Skill Journal 9.
57 Simplican (n 54).
58 Tessa-May Zirnsak, ‘Contextualizing Distress: Understanding Challenging Behaviour as a Product of Resistance in the Intellectual Disability Community’ (2021) 15(3) Journal of Literary and Cultural Disability Studies 269.
59 Recognition of intellectual or cognitive impairments in criminal legal contexts is itself complicated and remains part of a longer history of conflating intellectual disability with criminality. This has resulted in the misguided notion that some features of intellectual impairment are themselves characteristics of criminality. For discussion of this, see Eileen Baldry and others, ‘Reducing Vulnerability to Harm in Adults with Cognitive Disabilities in the Australian Criminal Justice System’ (2013) 10(3) Journal of Policy and Practice in Intellectual Disabilities 222, 228.
60 Zirnsak (n 58); Simplican (n 54).
61 Hollomotz, Learning Difficulties and Sexual Vulnerability: A Social Approach (n 15).
62 ibid 145.
63 ibid 145–46.
64 ibid.
65 See generally Hollomotz, Learning Difficulties and Sexual Vulnerability: A Social Approach (n 15).
66 ibid.
67 Nathaniel Lawshe, Keller Sheppard and Jack McDevitt, ‘Hate Crimes’ in George Ritzer, J. Michael Ryan & Betsy Thorn (eds), The Blackwell Encyclopedia of Sociology (John Wiley & Sons 2020).
68 ibid 79.
69 Fitzgerald and Withers (n 19).
70 For example, people with mental health and cognitive disability are often convicted and imprisoned for lower-level offending, such as for public order, theft, road and traffic and alcohol and drug related offences. See Australian Bureau of Statistics, ‘Prisoners in Australia’ (Catalogue No 4517.0, 2006) <https://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/21A1C193CFD3E93CCA257243001B6036/$File/45170_2006.pdf> accessed 28 July 2022. The rate of people with mental health and cognitive disability in prison appears to be only increasing and many cycle back through the prison system on short sentences and are rearrested and reimprisoned, often due to limited support and homelessness upon exiting prison. See Eileen Baldry, ‘Prisons and Vulnerable Persons: Institutions and Patriarchy’ (Australia and New Zealand Critical Criminology Conference, Melbourne, 2009); Eileen Baldry, Leanne Dowse and Melissa Clarence, ‘Background Paper: Pathways to Prison for Mentally Ill and Cognitively Impaired Offenders’ (NSW District Court Annual Conference, Sydney, 6–7 April 2010). Some are subjected to indefinite detention if deemed unfit to stand trial. See Piers M Gooding and others, ‘Unfitness to Stand Trial: The Indefinite Detention of Persons with Cognitive Disabilities in Australia and the United Nations Convention on the Rights of Persons with Disabilities’ (2016) 10 Courts of Conscience 6. Heightened disadvantage for Aboriginal and Torres Strait Islander people with cognitive disabilities is experienced across the criminal legal system. See Gooding and others, ‘Unfitness to Stand Trial and the Indefinite Detention of Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for Change’ (n 40).
71 Linda Steele, Disability, Criminal Justice and Law: Reconsidering Court Diversion (n 11) 11–12 (emphasis in original).
72 ibid.
73 For Ben-Moshe's concept of race-ability, see Ben-Moshe, Decarcerating Disability: Deinstitutionalization and Prison Abolition (n 6). For a useful discussion of race, disability and ‘dangerousness’ in the Australian settler colonial context, see Fleur Beaupert and Shelley Bielefeld, ‘Fixated Persons Units: A Disability Studies and Critical Race Theory (DisCrit) Analysis’ in Claire Spivakovsky, Linda Steele and Penelope Weller (eds), The Legacies of Institutionalisation: Disability, Law and Policy in the ‘Deinstitutionalised’ Community (Hart Publishing 2020).
74 Gooding and others, ‘Unfitness to Stand Trial and the Indefinite Detention of Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for Change’ (n 40).
75 See Eileen Baldry and others, ‘Reducing Vulnerability to Harm in Adults with Cognitive Disabilities in the Australian Criminal Justice System’ (2013) 10(3) Journal of Policy and Practice in Intellectual Disabilities 222; Ruth McCausland and Eileen Baldry, ‘“I Feel Like I Failed Him by Ringing the Police”: Criminalising Disability in Australia’ (2017) 19(3) Punishment & Society 290.
76 Victorian Ombudsman (n 27). The Victorian Ombudsman’s report refers to stories of disabled people who are incarcerated as stories of ‘vulnerable people’, 5; a letter from Forensicare is reported as stating that ‘[Sue] is a vulnerable person and would be at risk from others’, 31; and Sue’s legal representatives in the court transcripts state: ‘It’s concerning that somebody who is as acutely vulnerable as [Sue] could nevertheless spend 18 months in custody on matters which would have unlikely to attract a custodial sentence had she been able to plead guilty to them in the first place’, 35.
77 Steele has conceptualised such interventions as ‘disability specific, lawful violence’. Linda Steele, ‘Disability, Abnormality and Criminal Law: Sterilisation as Lawful and “Good” Violence’ (n 22) 467–97; Claire Spivakovsky, ‘The Impossibilities of “Bearing Witness” to the Violence of Coercive Interventions in the Disability Sector’ in Claire Spivakovsky, Kate Seear and Adrian Carter (eds), Critical Perspectives on Coercive Interventions: Law, Medicine and Society (Routledge 2018).
78 Office of the Public Advocate (n 28).
79 Kathy Ellem, ‘Experiences of Leaving Prison for People with Intellectual Disability’ (2012) 3(3) Journal of Learning Disabilities and Offending Behaviour 127.
80 Victorian Ombudsman (n 27) 20.
81 In 2021, the Victorian Government announced a $190 million expansion of the State’s largest women’s prison, the Dame Phyllis Frost Centre. See ‘Build Homes Not Prisons’ <https://homesnotprisons.com.au> accessed 4 November 2020.
82 In 2018, reforms to the Bail Act 1977 (Vic) added restrictive ‘reverse onus’ provisions, requiring accused persons to establish either ‘exceptional circumstances’ or ‘compelling reasons’, the highest legal threshold tests, in order to be granted bail – including those accused of low-level offenses, such as shop theft or drug possession. See Emma Russell and others, A Constellation of Circumstances: The Drivers of Women’s Increasing Rates of Remand in Victoria (Fitzroy Legal Service and the La Trobe Centre for Health, Law and Society 2020); Emma K Russell, Bree Carlton and Danielle Tyson, ‘“It’s a Gendered Issue, 100 Per Cent”: How Tough Bail Laws Entrench Gender and Racial Inequality and Social Disadvantage’ (2021) 10(3) International Journal for Crime, Justice and Social Democracy.
83 Victorian Ombudsman (n 27).
84 Ben-Moshe, Chapman and Carey (n 6) 3.
85 Aboriginal Legal Service (NSW/ACT), ‘Open Letter: Urgent Action from Australian Governments Needed to Prevent COVID-19 Black Deaths in Custody (29 April 2020) <alsnswact.org.au/open_letter_from_families_clean_out_prisons> accessed 4 November 2020; Federation of Community Legal Centres and Law Institute of Victoria, ‘Pathway to Decarceration: A Justice System Response to COVID 19’ (2020).
86 ‘Build Homes Not Prisons’ (n 81).
87 Adeshola Ore, ‘Calls for People with Mental Impairment to Get More Protections in Victoria’s Justice System’ The Guardian (28 March 2022) <www.theguardian.com/australia-news/2022/mar/28/calls-for-people-with-mental-impairment-to-get-more-protections-in-victorias-justice-system> accessed 3 April 2022.