Disability Law Journal

Our nation is engaged in deep debate over sexual consent. But to date the discussion has overlooked sexual consent’s implications for a key demographic: people with mental disabilities, for whom the reported incidence of sexual violence is three times that of the nondisabled population. Even as popular debate overlooks the question of sexual consent for those with disabilities, contemporary legal scholars critique governmental overregulation of this area, arguing that it diminishes the agency and dignity of people with disabilities. Yet in defending their position, these scholars rely on empirical data from over twenty years ago, when disability and sexual assault laws and social norms looked quite different than those of today.

Current scholarly discussions about sexual consent and mental disability suffer from an outdated empirical baseline that masks critical information about the profile and experience of sexual violence. This Article creates a new empirical baseline for modern scholarship on sexual assault and disability. Based on an original survey of all fifty states and jurisprudence from the past twenty years of state sexual assault and rape appeals where the victim has a mental disability, this Article updates and critiques four major claims about sexual consent and disability in the current literature. First, through a review of statutes across the country, it complicates the traditional notion that statutes are unduly vague in their definition of disability, and as a result, either over or underemphasize disability. The author advances a new organizing taxonomy for sexual assault statutes addressing consent for people with mental disabilities. Second, this dataset upends the prevailing claim by legal scholars that courts overemphasize standardized evidence such as intelligence quotient (IQ) or mental age when judging a person’s functional capacity to consent to sex. Instead, this Article shows that courts frequently look at adaptive abilities to augment standardized evidence but, in doing so, overvalue certain kinds of adaptive evidence that have low probative value, to the detriment of persons with mental disabilities. Third, legislators and legal scholars focus on people in large institutional settings in their critiques of overregulation, but this new data shows that people in community-based settings are more often the complainants in rape and sexual assault cases. This raises important questions about the types of relationships the state regulates (formal versus informal care relationships), the location of these relationships (community versus institutional settings), and issues of class that intersect with disability and sexual regulation. By not addressing the right issues and contexts, current law leaves people with mental disabilities simultaneously more susceptible to sexual violence and less empowered to exercise sexual agency. Finally, the Article more deeply examines the traditional assumption that people with disabilities rarely have access to testify by considering a rarely-mentioned risk: whether testimony by people with disabilities skews capacity determinations because factfinders cannot see beyond the existence of the disability—a phenomenon which the author terms “the aesthetics of disability.” This Article calls upon scholars, courts, and policymakers to consider difficult questions of regulating sexual consent in ways that are consistent with the current profile and experience of sexual violence for people with mental disabilities reflected in this study.

Over the last five decades, advocates have fought for and secured constitutional prohibitions challenging solitary confinement, including ending the placement and prolonged isolation of individuals with psychiatric disabilities in solitary confinement. Yet, despite the valiant efforts of this courageous movement to protect the rights of incarcerated people with disabilities through litigation, the legal regime protecting the rights of incarcerated people with disabilities reflects a troubling paradigm: ableism.

Ableism is a complex system of cultural, political, economic, and social practices that facilitate, construct, or reinforce the subordination of people with disabilities in a given society. In this Essay I argue that current Eighth Amendment jurisprudence in prison conditions of confinement cases in some ways requires lawyers to engage in ableism to protect their clients from harsh and inhumane treatment. The complexity of this arrangement—as between protecting and expanding the rights of people with disabilities and reinforcing practices that facilitate their exclusion and subordination—is both a cause and effect of ableism, particularly in the area of Eighth Amendment jurisprudence. Though entrenched in our legal institutions, the overrepresentation of people with disabilities in the criminal legal system calls for a new approach to the representation of these individuals. Towards that end, this Essay proposes a series of interventions in both law and professional practice to reduce the reliance on, and effect of, ableism in representing people with disabilities in the prison reform litigation.

This Article explores how race functions to ascribe and criminalize disability. It posits that for White students in wealthy schools, disabilities or perceived disabilities are often viewed as medical conditions and treated with care and resources. For students of color, however, the construction of disability (if it exists) may be a criminalized condition that is treated as warranting punishment and segregated classrooms, possibly leading to juvenile justice system involvement. Providing a review of the K-12 disability legal regimes, this Article maps how the process of identifying a student with a disability happens in a hyper-criminalized school setting. The Article argues that the school itself contributes to the construction and criminalization of disability and that the attribution of disability is a product of the subjectivity built into the law, heavily surveilled school environments, and biases held by teachers and administrators. For students of color, instead of a designation that attracts more resources, disability is one of the mechanisms through which they are criminalized. This Article culminates with a call for scholars and practitioners to understand the web that exists in the construction and criminalization of disabilities for Black and Latinx children and the role that schools and school actors play in this process.

While it might be expected that the mentallly ill are treated simlarly throughout the criminal justice system irrespective of race, the cases I have reviewed suggest otherwise. By focusing on the triage function performed by police in their street-level encounters, this project provides insight into the intersecting factors at work in police encounters with the mentally ill.

Ultimately, this Article calls for renewed attention to the ways in which police exercise their discretion, as it appears that they do so in markedly different ways depending upon the race of the person deemed mentally ill.

It is no secret that there is an issue of police brutality in marginalized communities. While there are many suggestions on how to resolve it—including police training, erasure, or police accountability committees—this Note turns to the role of the court. The court has the power to classify or excuse specific police conduct as unreasonable. Traditionally the court reviews excessive force by looking at the severity of the crime, the immediate threat to the officers or others, if there was resistance to an arrest or flight, and may consider additional factors. It would then balance those factors against the type of forced used. Currently many case outcomes show a lack of consideration for unique variables, causing the excusing of police violence, especially against those living with mental illness. In this note, the author argues the current doctrine of excessive force analysis leaves room for the use of an intersectional lens. An intersectional perspective would allow the court to incorporate factors that considerably address police violence on multi-vulnerable persons, such as people of color living with mental illness. This leaves more room for reprimanding police brutality instead of excusing it.

During the editing of this note, the discussion about ending qualified immunity increased in the midst of nationwide protests against police brutality. The author of this Note supports ending qualified immunity with the goal of no longer shielding law enforcement from the consequences of their bad behavior. In the alternative, this Note suggests that the use of an intersectional lens can also provide a solution by ending the way the court currently analyzes excessive force cases.

In 1990, the passage of the Americans with Disabilities Act (ADA) seemed to promise a new era for people with disabilities—one free from discriminatory exclusion and undue interference in personal autonomy. Thirty years later, universities—subject to the law’s mandates under Title III—have found themselves grappling with an unprecedented rise in mental illness among young adults on campuses. One approach to dealing with this crisis has been to compel students who pose a risk of self-harm to take leaves of absence from their studies until their health improves.

In employing such a strategy, Stanford University ran headlong into the ADA. A group of students who were forced to leave campus because of mental health disorders recently sued Stanford, arguing the university excluded them because of their disabilities. The lawsuit ultimately settled, and no court has considered the merits of the challenge. Additionally, no prior literature has discussed the ADA’s application in this context.

This Note analyzes whether the direct-threat or fundamental-alteration exceptions to the ADA’s integration mandate can justify a university policy compelling leaves of absence for mentally ill students. It answers in the negative, arguing that such a policy violates the ADA except as applied to the most severe cases. It further finds that policy views about the proper role of universities in staving off campus suicide are polarized between those wanting schools to be more paternalistic and those wanting students to have greater autonomy.