This is an attempt at a more theoretical discussion of the relationship between legal capacity and the characterization of forced psychiatric interventions as torture, which also describes the intersectionality between feminism and survivor knowledge as a critical disability perspective and states a view of the essential categories of both.
Legal capacity is constructed based on a concept of personhood that is disembodied, abstracted as mind in a mind-body duality that reflects the male self-concept and the denigration and subordination of female bodies in particular. Alternatively and in keeping with the feminist principle of using language that accurately reflects agency (who does what to whom), this is a concept of personhood that is based on men’s bodies and experiences, men’s taking of themselves as a paradigm of humanity, so that women are only admitted to personhood insofar as we are similar to men. Our female bodies are outside this experience, female sexuality is conceived as being penetrated and the female body as having no definite boundaries, rather as always being permeable. This was brought home to me clearly in considering restrictions on women’s right to terminate a pregnancy, which implicitly or explicitly invoke a separate personhood for the fetus within the woman’s body. Women’s mysteries may well have a complex relationship to pregnancy and the creation of new life, to the intimacy of sexuality in which the body changes in how it relates to others – but that does not mean that our sovereignty over ourselves is questionable. The concept of personhood in law and social custom needs to be based on women, in order to institute a regime of equality of the sexes and to stop rape.
The construction of personhood as ideally disembodied and actually based on the hierarchy of gender that privileges male embodiment and necessarily diminishes female embodiment to rationalize and facilitate men’s extraction of resources from women, also discriminates against disabled people as such, so that disabled women are doubly discriminated. This is what I was trying to convey with my work conceptualizing a prohibition on forced interventions aimed at correcting or alleviating an actual or perceived impairment. This formulation draws on the right to bodily autonomy and the right to be different – i.e. to have a specifically embodied personhood and for that embodiment to be recognized as having its own integrity and claim to be worthy of respect and legal protection. The right to be different resonates for disabled people beyond survivors of forced psychiatry, and this is an instance where our theory and practice develops an area that is relevant to disability rights as a whole. I submit that it is also relevant to feminism, by bringing out, albeit implicitly when first introduced, the relationship between bodily autonomy and embodied personhood.
What is psychosocial disability?
Where does psychosocial disability, or madness, fit in this discussion? Negations of negations, since it is and is not a thing of the body; in a sense our psyche is the analog to the body within personhood itself, that is a conditionality that is constantly changing and that we inhabit or embody as consciousness. Breathing into the entirety of who we are, self-knowledge or self-knowing as an ongoing life project, occurs on the physical and psychic planes both, and they are often inseparable. It is also the autonomous aspect of the body; the aspect of the body that wills, thinks, feels, chooses. These complexities can illuminate the shift from the old paradigm to the new paradigm in legal capacity more accurately than the notion of different decision-making styles and the devaluation of those styles that are more emotional or intuitive. The latter notion flattens and essentializes the sexist and disabling construction of legal capacity and reinforces rather than dismantles gender stereotypes and stereotypes about madness.
The concept of embodied personhood also helps to theoretically support the premise of equal criminal and civil responsibility. There is nowhere to escape to outside the confines of oneself to separate consciousness from psyche or will from action; embodied personhood also states a relational premise about who we are, inevitably as all law concerns relations between human beings. As embodied persons we have obligations to others, and we have further obligations when we harm them by acts or omissions. It’s interesting to consider as a potential model for radical reformulation the approach to state responsibility under international law, which does not distinguish civil from criminal and while it acknowledges certain “circumstances precluding wrongfulness” does not invoke a concept of mens rea. Maybe mens rea is not sacred, maybe it’s possible to negotiate repair or separation within a relational context rather than continue to use imprisonment as punishment, which reinforces the paradigm of authoritarianism which is gendered and racialized and disabling, among other inequalities.
(If we are continuing a punishment system I still maintain equal responsibility is necessary, ensuring mens rea and all other doctrines mitigating responsibility are inclusively designed, and that each person’s social circumstances are taken into account including issues of oppression and discrimination, in making a determination of liability. In a restorative justice context, the community as a whole and individuals depending on their relationship to the circumstances may be asked to take responsibility; this would seem to be appropriate to a non-punishment system rather than an authoritarian imposition of punishment which then demands safeguards including the prohibition of collective punishment.)
The last piece of the CRPD framework from a survivor perspective, liberty, where does that fit? I don’t think it has the same conceptual resonance as the others; rather it is more instrumental. Watching a video from 2004, I recalled that the initial idea of why liberty is crucial is that it is about control over the body, of the embodied person. When they can confine you they can also torture you; they can scrutinize and mock and defame and all the rest. We might resist the incursion or infiltration of the subjected vision of ourselves into our own consciousness and self-concept, but our actions take place within that frame; it distorts our relations and places us in enforced relationship to others in a hierarchy that is meant to dominate and control us. There is a restriction not just of the freedom of the body and the will, but of bodily autonomy as an expression of embodied personhood. Forced relationships having the purpose of restricting our autonomy create an impossible conundrum affecting the ability to experience oneself as an embodied person with bodily autonomy, as a sovereign being in relation to sovereign others. Although international law has not made the right to liberty as such absolute (e.g. criminal justice detention can be lawful), it is a significant step forward to recognize an absolute prohibition on detention based on actual or perceived psychosocial impairment or disability, as the Committee on the Rights of Persons with Disabilities has now done under CRPD Article 14.
I have tried in a very condensed way to unify the concepts of legal capacity, forced interventions as torture, and prohibition of disability-detention, that are key elements of survivor knowledge that are now enshrined in international law through the CRPD, through reference to a feminist analysis of embodied personhood and bodily autonomy. There is more to be said on legal capacity and embodied personhood; e.g. the positionality of any person with respect to legal capacity and their experience of themselves as taking for granted their bodily autonomy and personhood or as a non-person or as having their personhood and autonomy repeatedly challenged, the ways in which this happens relationally and how the law currently enforces these differences and could potentially undermine and redress them. I hope this short conceptual piece will deepen the community’s understanding of the underlying premises that are implicit in key elements of the CRPD and will also stimulate further development of the law of women’s human rights in a similar vein.