From punishment to protection: Containing and controlling the lives of people with disabilities in human rights
| Author | Claire Spivakovsky |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| DOI | http://doi.org/10.1177/1462474514548805 |
| Subject Matter | Articles |
Punishment & Society
2014, Vol. 16(5) 560–577
!The Author(s) 2014
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DOI: 10.1177/1462474514548805
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Article
From punishment to
protection: Containing
and controlling the lives
of people with disabilities
in human rights
Claire Spivakovsky
Monash University, Australia
Abstract
In the last decade, criminology has begun to raise concerns about people with disabil-
ities’ problematic relationship with criminal justice systems. Yet we have ignored their
problematic relationship with civil justice systems; a relationship which has seen people
with disabilities subject to a range of punitive civil controls in the wake of their deinsti-
tutionalisation. This article draws attention to one such punitive civil control, the
Supervised Treatment Order regime in the Australian state of Victoria. Drawing on
Foucault and his interlocutors’ work on ‘governmentality’, and engaging with Cohen’s
concept of ‘magical legalisms’, the article reveals how this civil regime has become an
effective mechanism for governing the lives of sex offenders with disabilities post their
release from criminal justice systems. The article illuminates how this unusual function
of the regime has not only been obscured from criminology’s view through claims of
legislative intent, but further reconstituted as protective of people with disabilities’
human rights. The article concludes by discussing the implications of criminology’s
absence from engaging with such punitive civil orders for people with disabilities and
the wider penal field.
Keywords
civil law, disability, human rights, legally hybrid practices, punishment
Corresponding author:
Claire Spivakovsky, Lecturer in Criminology, Monash University, Clayton, 3800, Australia.
Email: claire.spivakovsky@monash.edu
Introduction
Only in the last decade has criminology begun to unravel and explore the prob-
lematic nature of people with disabilities’ relationship with criminal justice systems
(see Baldry et al., 2011; Harcourt, 2008). While this work represents an important
step forward for the discipline, there remains a critical need for criminology to
engage with equally concerning relationships taking shape beyond the confines of
criminal justice.
In Victoria, Australia for example, the past decade has seen the introduction of
Supervised Treatment Orders (STOs) under the Disability Act (2006). STOs are
civil orders which only apply to people with intellectual disabilities, and in particu-
lar, only to those who, based on a historic pattern of ‘violent or dangerous
behaviour’ are:
.identified as posing ‘a significant risk of serious harm’ to others;
.categorised as needing to be removed from the community; and
.classified as requiring ‘treatment’ to reduce their risk of harm – treatment which
includes practices such as chemical castration or prescription of other
behaviour-modifying medications.
Clearly STOs have a number of features that are, or at least should be, of interest to
criminologists. Yet STOs, like many other civil and administrative orders, have
been largely ignored by the discipline. Our lack of attention to these issues is
problematic for two reasons.
First, it has consequences for the discipline. As Velloso (2013) recently argued,
notions of punishment and punitiveness operate in, among and through a broader
kinetic structure of criminal, civil and administrative law. Thus, when we constrain
our attention to the criminal justice arena, we limit our understandings of punish-
ment and society.
Second, it has consequences for practice. We have left the roles of inquiry and
scrutiny to others. Indeed, where we have hesitated, scholars from disciplines like
disability studies have eagerly engaged. Yet, these scholars ask questions that are
fundamental to their discipline, not ours. Accordingly, insight into the operation of
punishment and punitiveness is not only of little to no concern in their work, but as
this article will demonstrate, manifestations of punishment and punitiveness in civil
and administrative justice arenas go unnoticed and uncontested.
The objective of this article is therefore threefold: (1) to bring the discipline
much needed insight into issues of disability; (2) to situate these insights within,
and contribute to recent discussions about the limited scope of punishment and
society inquiry and the need to turn our attention to broader issues of governance;
and (3) to explore one such issue of governance and the ways by which it illumin-
ates how punishment and punitiveness operate among and through multiple
justice arenas.
To achieve these objectives, this article works through the case example of the
STO regime in the Australian state of Victoria. Drawing on Foucault and his
Spivakovsky 561
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