Disability Law in a Pandemic: The Temporal Folds of Medico-legal Violence
| Author | Linda Roslyn Steele,Claire Spivakovsky |
| Published date | 01 April 2022 |
| Date | 01 April 2022 |
| DOI | http://doi.org/10.1177/09646639211022795 |
| Subject Matter | Articles |
Article
Disability Law in a Pandemic:
The Temporal Folds of
Medico-legal Violence
Claire Spivakovsky
The University of Melbourne, Australia
Linda Roslyn Steele
University of Technology Sydney, Australia
Abstract
Disabled people are subject to disability laws – such as guardianship, mental health and
mental capacity legislation – which only apply to them, and which enable legal violence
on the basis of disability (‘disability-specific lawful violence’). While public health laws
during the COVID-19 pandemic enabled coercive interventions in the general popu-
lation, disabled people have additionally been subject to the continued, and at times
intensified, operation of disability laws and their lawful violence. In this article we
engage with scholarship on law, temporality and disability to explore the amplification
of disability-specific lawful violence during the pandemic. We show how this amplifi-
cation has been made possible through the folding of longstanding assumptions about
disabled people – as at risk of police contact; as vulnerable, unhealthy and con-
taminating – into the immediate crisis of the pandemic; ignoring structural drivers of
oppression, and responsibilising disabled people for their circumstances and the vio-
lence they experience.
Keywords
COVID-19, disability, emergency, guardianship law, indefinite detention, restrictive
practices, temporality, violence
Corresponding author:
Claire Spivakovsky, School of Social and Political Sciences, The University of Melbourne, Victoria, 3010,
Australia.
Email: cspivakovsky@unimelb.edu.au
Social & Legal Studies
ªThe Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639211022795
journals.sagepub.com/home/sls
2022, Vol. 31(2) 175–196
Introduction
This article contributes to debates around the coercive functions of law during the
COVID-19 pandemic (‘the pandemic’). It shifts focus from public health law to dis-
ability law to consider the intersections of these law s during the pandemic, and the
consequences thereof for both disabled people and the broader community.
Worldwide, legal responses to the pand emic have restricted people’s fre edom of
movement, liberty, and association, curtailing the ways by which many people partici-
pate in their communities. In Australia – the focus of this article – public health laws
have been implemented through declared states of emergency and disaster. These laws
have limited the reasons a person is lawfully allowed to leave their home, the duration for
which they can leave, and the distance for which they can travel. These laws have also
limited the number of visitors within a person’s home, and with whom that person can
associate.
For many people, these public health laws represent their first encounter with the
coercive functions of law. For others, contending with law’s coercive functions is famil-
iar. For centuries, disabled people – most notably those living with psychosocial dis-
ability, intellectual disabilities and other cognitive impairments – have experienced
significant restrictions on their freedom of movement, liberty, and association. Disability
laws – that is, laws that only apply to disabled people by reason of their disability – have
been, and continue to be, central to enabling and legitimating these restrictions over time
(Spivakovsky et al., 2020). Contemporary disability laws enable forced mental health
medication, electroshock therapy, and the seclusion of disabled people in mental health
facilities in the community (Kelly, 2015). These laws also enable ‘restrictive practices’
that can be used to lock disabled people in a room, sedate them, and/or mechanically or
physically restrain them (Spivakovsky, 2017). These practices can be applied in homes,
large disability residential centres, aged care facilities, schools and segregated employ-
ment. Finally, in the case of some women with disability, contemporary disability laws
enable non-consensual sterilisation, abortion and menstrual suppression (Steele, 2014,
2016, 2018a).
These disability-specific applications of the coercive functions of law have histori-
cally drawn minimal public or political contestation. Typically, they are framed in
therapeutic terminology, and presented as beneficial to disabled people and the broader
community. Yet, as we have argued elsewhere (Spivakovsky, 2018; Steele, 2014, 2020),
these targeted applications of law’s coercive functions are violent, and specifically, they
are a form of legal violence. They are non-consensual, harmful actions perpetrated
against disabled people that are regulated by law, but not prohibited by it, and as such,
take on legal character. We refer to this perpetration of legal violence as ‘disability-
specific lawful violence’ (Steele, 2014).
As socio-legal scholars of dis/ablism, we have spent much of our early careers
questioning how and why disability-specific lawful violence remains palatable and
largely unquestioned (see e.g. Spivakovsky, 2014a, 2014b, 2017, 2018; Spivakovsky
and Seear, 2017; Steele, 2014, 2016, 2017a, 2017b, 2020). Our interest has therefore
been piqued by the emergence of vehement public and political debates about the limits
of, and justifications for, using coercive public health laws during the pandemic.
176 Social & Legal Studies 31(2)
To continue reading
Request your trial