Journal Articles by Linda Steele
‘Troubling Law’s Indefinite Detention: Disability, the Carceral Body and Institutional Injustice’ Social and Legal Studies (2018) DOI: https://doi.org/10.1177/0964663918769478
Through a case study of the official state representation of the institutional life course of one... more 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, legal orders, service systems, material spaces and modes of intervention, law provides for the heightened carceral control of bodies on the basis of their designation as disabled. In being designated as disabled, bodies are positioned as necessarily and legitimately subjected to ongoing, persistent and multifarious control in a way paradigmatic of Foucault’s argument of the policed subject such that the disabled body itself is a carceral site. Moreover, the indefinite detention of disabled Indigenous persons on the basis of their disability builds upon and masks as ‘noncolonial’ settler colonial violence against Indigenous Australians. An analysis of how law orders, constructs and legitimates disabled carceral control troubles current understandings of indefinite detention, illuminates the limited notions of (in)justice that these understandings allow and provides new openings to acknowledging a fuller and more complex range of institutional injustices done to disabled offenders.
A disability aware approach to torture prevention? Australian OPCAT ratification and improved protections for people with disability
In 2017, Australia ratified the Optional Protocol to the Convention against Torture and Other Cru... more In 2017, Australia ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Ratification of OPCAT presents as a unique opportunity to highlight the institutional treatment of people with disability in a range of sites of detention within Australia and build on advancing international protections for people with disability, including those articulated in the Convention on the Rights of Persons with Disabilities (CRPD). This article considers the opportunity presented by OPCAT for improving protections for people with disability against torture and ill-treatment. The article argues for an expansive definition of ‘sites of detention’ that is able to encapsulate both disability-specific and mainstream settings in which people with disability may be deprived of their liberty, as well as to address specific practices such as the use of mechanical restraint, chemical restraint and seclusion. Based on an analysis of international National Preventive Mechanism (NPM) models, it is further argued that people with disability, their representative bodies and other civil society actors must be meaningfully involved in NPM processes, including in the monitoring of sites of detention, and the identification of systemic issues affecting people with disability with lived experience of detention.
Temporality, Disability and Institutional Violence: Revisiting In Re F
Griffith Law Review, 2017
A recent suggestion of some disability legal scholars is to provide a non-discriminatory legal fr... more 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
This article explores police responses to sexual violence reported by women offenders designated ... more 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.
Disabling Forensic Mental Health Detention: The Carcerality of the Disabled Body
‘‘Disabling’’ forensic detention involves challenging the self-evidence of the meaning of disabil... more ‘‘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.
http://pun.sagepub.com/content/early/2016/11/24/1462474516680204.full.pdf?ijkey=tTFgWJfwzupoBEG&keytype=finite
Gender, Disability Rights and Violence Against Medical Bodies
Linda Steele and Leanne Dowse, ‘Gender, Disability Rights and Violence Against Medical Bodies’ (2... more Linda Steele and Leanne Dowse, ‘Gender, Disability Rights and Violence Against Medical Bodies’ (2016) 31(88) Australian Feminist Studies pp 187-202
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.
Medical Bodies: Gender, Justice and Medicine, introduction to special issue of Australian Feminist Studies
http://dx.doi.org/10.1080/08164649.2016.1224081
Diversion from the criminal justice system pursuant to s 32 of the Mental Health (Forensic Provis... more Diversion from the criminal justice system pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) is increasingly being deployed as a key response to the issues facing people diagnosed with cognitive impairment and/or mental illness in the criminal justice system. The 'medical model' of disability, which is focused on disability as an internal, individual pathology, contributes to the marginalisation of people with disability, notably by providing a legitimate basis for the legal and social regulation of people with disability through therapeutic interventions. The scholarly field of critical disability studies contests the medical model by making apparent the social and political contingency of disability, including the intersection of disability with other dimensions of politicised identity (such as gender and Indigeneity) and the role of law and institutions (including the criminal justice system) in the disablement, marginalisation and criminalisation of people with disability. Applying critical disability studies to s 32 problematises the characterisation of the legal subject with diagnosed impairment and this provides a new basis for questioning the coercion of people with disability through the criminal justice intervention of diversion. An empirical analysis of the diagnostics, demographics and criminal justice pathways of a sample of individuals who have received s 32 orders provides some material foundations for a more politically and socially directed analysis of s 32 and for a broader reflection on the role of the criminal law in issues facing people diagnosed with cognitive impairments and mental illness in the criminal justice system.
'Questioning Law's Capacity' (2015) 40(3) Alternative Law Journal
This article reflects upon the recommendations made by the Australian Law Reform Commission in it... more This article reflects upon the recommendations made by the Australian Law Reform Commission in its inquiry into equality, capacity and disability in Commonwealth laws in light of the right to legal capacity contained in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. Article 12 places obligations on States Parties to reform laws that deny legal capacity to people with disability. The article argues that the Australian Law Reform Commission’s recommendations do not go far enough in recognising the right to legal capacity, in particular because there is a lack of clarity about the way in which a shift to supported decision-making may be implemented and the recommendations do not explicitly address the problematic role of mental capacity and how it may continue to inform the implementation of any new laws developed.
Disability, abnormality and criminal law: sterilisation as lawful and ‘good’ violence, Griffith Law Review
This article analyses the place of the intersections of the criminal law of assault and the Famil... more 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.
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... more 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.
Thesis Chapters by Linda Steele
Abstract of PhD thesis completed at University of Sydney in 2014.
Law Reform Submissions by Linda Steele
This is a submission responding to the new Australian National Disability Insurance Scheme Code o... more This is a submission responding to the new Australian National Disability Insurance Scheme Code of Conduct Discussion Paper. Prompted by our academic and advocacy engagement with disability institutional violence issues, our main recommendation is that the Draft National Disability Insurance Scheme Code of Conduct must engage with issues pertaining to the administration and use of restrictive practices, and explicitly address the potential of restrictive practices to be abused by NDIS disability service providers, with the ultimate aim of eliminating the use of restrictive practices.
ABORIGINAL AND TORRES STRAIT ISLANDER ON THE RECURRENT AND INDEFINITE DETENTION OF PEOPLE WITH CO... more ABORIGINAL AND TORRES STRAIT ISLANDER ON THE RECURRENT AND INDEFINITE DETENTION OF PEOPLE WITH COGNITIVE AND PSYCHIATRIC IMPAIRMENT
A Submission to the Senate Inquiry on the Indefinite Detention of People with Cognitive and Psychiatric Impairment
Prepared by:
FIRST PEOPLES DISABILITY JUSTICE CONSORTIUM
An alliance of Aboriginal and Torres Strait Islander community organisations, disability, justice and legal researchers, Universities and Research Institutes.
An initiative of First Peoples Disability Network (Australia), its strategic partners and supports.
April 2016
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Journal Articles by Linda Steele
http://pun.sagepub.com/content/early/2016/11/24/1462474516680204.full.pdf?ijkey=tTFgWJfwzupoBEG&keytype=finite
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.
Thesis Chapters by Linda Steele
Law Reform Submissions by Linda Steele
A Submission to the Senate Inquiry on the Indefinite Detention of People with Cognitive and Psychiatric Impairment
Prepared by:
FIRST PEOPLES DISABILITY JUSTICE CONSORTIUM
An alliance of Aboriginal and Torres Strait Islander community organisations, disability, justice and legal researchers, Universities and Research Institutes.
An initiative of First Peoples Disability Network (Australia), its strategic partners and supports.
April 2016