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

Abstract

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 disability's 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.

Notes

¹ References in this paragraph are principally to the New South Wales jurisdiction in light of the jurisdictional location of the authors in New South Wales, Australia.

² See, for example, NSW Police Force (1998) pp 66–68; New South Wales Police Force (2013); Crimes (Forensic Procedures) Act 2000 (NSW) ss 7, 98; Criminal Procedure Act 1986 (NSW) ss 76, 185.

³ See, for example, Criminal Procedure Act 1986 (NSW) ss 91, 306M, 306P, 306R, 306T, 306ZK; Evidence Act 1995 (NSW) ss 13, 41, 42, 85; Mental Health (Forensic Provisions) Act 1990 (NSW) pts 2, 3.

⁴ See, for example, mental defences including not guilty by reason of mental illness, substantial impairment by abnormality of mind, infanticide: M’Naghten's Case (1843) 10 Cl & Fin 200 (not guilty by reason of mental illness); R v Presser [1958] VR 45 (unfitness); Crimes Act 1900 (NSW) ss 22A (infanticide), 23A (substantial impairment by abnormality of mind). See also ‘battered women's syndrome’ in the context of the defences of self-defence and provocation: Sheehy, Stubbs and Tolmie (2012).

⁵ See, for example, Crimes (Sentencing Procedure) Act 1999 (NSW) s 60B.

⁶ See generally Mental Health (Forensic Provisions) Act 1990 (NSW).

⁷ See, for example, Lacey (2001a); Lacey (2001b); Lacey (2010); Loughnan (2012); Norrie (2001).

⁸ See, for example, Baldry et al (2012); Boyd-Caine and Chappell (2005–2006); Butler (2005); Dowse et al (2011); Fazel et al (2008); Hayes and McIlwain (2006); Hayes et al (2007); Holland (2004); Ogloff et al (2007); Ogloff et al (2013); Schofield et al (2006); Vanny et al (2008); Vanny et al (2009).

⁹ See, for example, Dowse et al (2013); Hughes et al (2012).

¹⁰ See, for example, Australian Human Rights Commission (2013); Australian Human Rights Commission (2014); American Civil Liberties Union (2009); Calma (2008); Canadian Mental Health Association & Public Interest Law Centre (2011); Dowse et al (2013); Equality and Human Rights Commission (2011); French (2007); Frohmader (2013); Intellectual Disability Rights Service et al (2008); Langdon (2007); Mental Health Law Centre (WA) (2013); Peters (2003); Rushworth (2011); Sotiri et al (2012); Talbot (2008); Victorian Equal Opportunity and Human Rights Commission (2014).

¹¹ Baldry et al (2012).

¹² Calma (2008); Simpson and Sotiri (2006); Sotiri et al (2012); Trofimovs and Dowse (2014). In the United States context in relation to the intersections of disability, race and criminal justice see Ribet (2010); Watts and Erevelles (2004).

¹³ Stathopoulos (2012).

¹⁴ Australian Law Reform Commission (2014); Bradley (2009); New South Wales Law Reform Commission (2012b); New South Wales Law Reform Commission (2013); New Zealand Law Commission (2010); The Law Commission (2014); The Law Commission (2013); Victorian Law Reform Commission (2014).

¹⁵ New South Wales Law Reform Commission (2012a); New South Wales Law Reform Commission (2012c).

¹⁶ Law Reform Commission (2013).

¹⁷ See, for example, Australian Law Reform Commission (2014); Scottish Law Commission (2014).

¹⁸ Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008).

¹⁹ See generally Committee on the Rights of Persons with Disabilities (2014) pp 10–11 [38]–[42]; Committee on the Rights of Persons with Disabilities (2013) pp 4–5 [32]. See also Office of the United Nations High Commissioner for Human Rights (2009) pp 15–16 [48]–[49].

²⁰ See, for example, Arkles (2013); Arrigo (2006); Arrigo (1996); Ben-Moshe, Chapman and Carey (2014); Bibbings (2010); Cobb (2010); Delaney (2003), pp 329–360; Howell (2007); Razack (2011); Razack (1998); Ribet (2010); Savell (2004); Spade (2011).

²¹ See, for example, Dhanda (2000); McSherry (1993); McSherry (1994); McSherry (2003); Peay (2010); Peay (2011); Slobogin (2006).

²² See, for example, Perlin (2013a); Perlin (2013b); Perlin (2000); Schneider, Bloom and Heerema (2007);

²³ Dowse et al (2009) pp 38–39.

²⁴ See, for example, Siebers’ critique of Wendy Brown's wounded attachments critique of rights, insofar as this relies upon the devaluing of trauma and injury which are both central to impairment and the politicising of disability: Siebers (2008), pp 79–80, 193–194. See more broadly the critique of the use of disability in other minority group critique (not necessarily in the specific context of legal or political theory): Davis (1995), p 5; Erevelles (2011), pp 29–33, 36–37; Watts and Erevelles (2004), p 276.

²⁵ See, for example, Jarman (2011), pp 9, 18–19; Mitchell and Snyder (2000), pp 2–4, 6–10.

²⁶ Baldry (2008) pp 33–35.

²⁷ See, for example, Chenoweth (1996); Dowse et al (2013); Cockram (2005); Glaser and Deane (1999); Green (2002) 49; Keilty and Connelly (2001); Kendall (2004); Murray and Heenan (2012); Murray and Powell (2008); Trofimovs and Dowse (2014).

²⁸ On deviancy and disability generally see, for example, Jarman (2012); Snyder and Mitchell (2006).

²⁹ Devlin and Pothier (2006) p 2.

³⁰ Campbell (2009).

³¹ Shildrick (2009).

³² See, for example, Campbell (2009); Carlson (2010); Corker and Shakespeare (2002); Erevelles (2011); Kafer (2013); Tremain (2005); Tremain (2002).

³³ See, for example, Norrie (2001). See also Lacey (2001a); Lacey (2001b); Lacey (2010); Loughnan (2012). See further Naffine (2009) in the context of legal philosophy more broadly.