Disability and torture: exception, epistemology and ‘black sites’

Abstract

Taking into consideration the November 2015 Australian Government Senate Standing Committees on Community Affairs final report on violence towards people with disability in institutional and residential settings, this paper explores the framing and epistemology of torture as practised against people with disability in sites of incarceration. Examining Giorgio Agamben’s account of biopolitical sovereignty, this paper considers torture against people with disability as facilitated by legal exception. Extending this perspective further, and drawing on scholarship which examines anti-black violence in the context of policing and mass incarceration, it is argued that torture against people with disability constitutes an epistemic problem, where people with disability are framed as available for excessive violence without recourse to justice systems. This essay argues for more attention to the links between the torture experienced by people with disability in different sites of incarceration and systemic violence against racialized populations, particularly in the context of mass imprisonment.

Acknowledgements

I thank Linda Steele, Jessica Robyn Cadwallader and Gerard Goggin for their encouragement and support to publish this essay. I also thank the invaluable comments made by the anonymous reviewers. Finally, I thank Lori Gruen, Claire Jean Kim and Timothy Pachirat for involving me in the Race and Animals Institute at Wesleyan University in June 2016, which has profoundly influenced the shape of this essay.

Notes

1. Or cruel, inhuman or degrading treatment. One definition of torture is provided by Article 1.1 of the United Nations’ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions’ (1984).

2. My own count in the report reveals a mere six instances where the word ‘torture’ is used, most frequently quoting stakeholder submissions (see Senate Standing Committees on Community Affairs 2015, 20, 21, 77 and 80).

3. Note that the political purchase of the word ‘torture’ relies on its potential ability to mobilize social, political and legal institutions. While we live in a world where torture is systematically carried out, we also know that forms of violence which are understood to conform to a definition of torture will attract a level of public condemnation. The potential for public condemnation and system change makes appeal to the word ‘torture’ as a mode of addressing injustice useful for political actors.

4. See n1.

5. The formulation of biopolitics by Agamben, which extends the work of Foucault, has excluded vital perspectives that may have allowed for a stronger theorization of exactly what biopolitics is, where its origins may stem from, and the coordinates of how biopolitical violence emerges today. For example, I will discuss below Jared Sexton’s suggestion that Agamben’s argument excludes an understanding of racial slavery and its continuing ‘afterlife’ in anti-black violence (Sexton 2010; see also Weheliye 2014). There are other perspectives on biopolitics worth noting. For example, focusing on the gendered dynamics of biopolitics, Anna Marie Smith (2010) has observed the relationship between State control of reproduction through welfare policies as a form of biopolitical exception; Dean Spade has explored how biopolitical population management through administrative categorization, gendered / racialized policing and incarceration work to produce ‘harmful practices that shorten trans lives’ (Spade 2011, 124; see also Bassichis and Spade 2014). There is also work occurring within animal studies and posthumanism exploring how exception might work in relation to animals. Cary Wolfe (2012) argues that the separation between human and animal is foundational for other forms of inter-human violence such as racism; I have argued previously that the modern industrial slaughterhouse might count as an important example for understanding the nature of sovereign exception, biopolitics and its importance to law (Wadiwel 2002). Alexander G. Weheliye utilizes black feminist perspectives to offer a critique of the construction of human within the Western enlightenment project and explore the project of ushering ‘different genres of the human’ (2014, 2, 3).

6. This sort of institution has been a primary focus for much advocacy, at least in the Global North, and has to an extent framed a human rights conceptualization of what torture against people with disability might look like (see for example Nowak 2008; Méndez 2013). This model of control is declining in many countries as a result of policies of de-institutionalization (see Beadle-Brown, Mansell, and Kozma 2007). However, large residential institutions remain a reality for many people with disability: for example the large number of institutions for adults and children in Central and Eastern Europe and the Former Soviet Union (Tobis 2000) and the current continuing battle to close institutions in Australia (see for example Fisher et al. 2015).

7. The Senate Community Affairs report concedes that ‘in most cases, victims and allegations are forgotten; victims are blamed for the crimes perpetuated against them; and the violence, neglect and abuse continues’ (2015, 49). Indeed, the structurally perceived personal characteristics of the person with disability (such as a ‘lack of inhibition’ or unquestioning compliance with authority figures) can become the focus of legal and social interventions, as systems that reproduce violence against disability displace the culpability for this violence onto people with disability themselves (see French, Dardel, and Price-Kelly 2009, 20).

8. For example Achille Mbembe has argued that it is not the concentration camp but the colony that has always been Europe’s primary site of violent exception (2003); while Suvendrini Perera has argued along similar lines that we find the camp present in Australia’s history as a penal colony, in segregation policies against Indigenous people, and contemporary policies of mandatory detention of stateless people (2002; see also Perera 2010).

9. The United States houses over 20% of the world’s prisoners (Walmsley 2016) and 37% of this prison population is African American, with black males up to 10 times more likely to go to prison than white males (Carson 2015, 15) It is worth noting in this context that Australia also practises overtly racialized imprisonment: Aboriginal and Torres Strait Islander people comprise 27% of the prison population, while only making up 2% of the general population (Australian Bureau of Statistics 2015).

10. It is perhaps no accident that some of the techniques that belong to the repertoire of torture practice in the context of military and paramilitary detention also resonate with practices applied to people with disability in the context of institutional care regimes. Forced restraint (which might extend to positional torture), chemical restraint, electrocution, extended seclusion and environmental controls are all practices that occur in both paramilitary and military detention, and in sites of institutional internment of people with disability. Indeed, there is probably a strong case to argue that the innovation in the development of some techniques, such as electrocution and chemical restraint, share intertwined histories between the contexts of medicine and military and policing. Rejali for example notes that this inter-twined history applies to the development of electroshock (2007, 138); note, as the controversy surrounding the Judge Rotenburg Centre revealed, electroshock is still being pursued as a form of ‘therapy’ against people with disability (see Rosenthal and Ahern 2012, 16, 17). We might similarly observe that ‘positional devices’, such as straightjackets, which aim to hold individuals in restrictive positions in order to restrain movement and enable forced interventions, have their origins within institutions designed to exert violence on people with disability (Soreff and Bazemore 2006, 17), yet are also present in the history of torture in military and paramilitary operations (e.g. see Rejali 2007, 81 and 310).

11. This would, in some contexts, suggest the development of technologies of violence that are deployed with a rationality of explicitly targeting people with disability. As Rejali observes, with reference to the use of the taser: ‘American police used Tasers just as they had used stun guns, mainly on inarticulate subjects, with criminal or institutional histories’ (2007, 245).

12. This might suggest a project of achieving epistemic justice, as described by Miranda Fricker (2007) as either comprising campaigns to combat prejudice (or ‘testimonial injustice’) and/or the provision of adequate knowledge resources to allow a subject to be recognized (‘hermeneutic injustice’). Caution should be exercised here though, since deep epistemic oppression may not be resolvable within the terms of an existing knowledge system, particularly one that structurally reproduces racialized hierarchies, gender difference and or ableism. On epistemic oppression and the limits of Fricker’s approach, see Kristie Dotson (2012).

13. Similarly disturbing is the commitment expressed towards achieving legislated protection for workers who use these practices, rather than the more pressing need to protect people with disability from violence. Former US President George W. Bush publicly argued in 2004, in a veiled defence of the infamous torture memos, that the aim was to protect US interrogation personal who were putting themselves on the line in the war against terror: ‘We’ll make sure professionals have the tools necessary to do their job within the law’ (Bush as quoted in McAskill 2008).