Monday, April 27, 2009

Could a planned Massachusetts bill restrict the sexual rights of people with disabilities?

From The Boston Globe:

State Representative Kathi-Anne Reinstein thought she was sponsoring a bill to protect a vulnerable population from sexual predators.

But the legislation has fueled a firestorm of protest, locally and nationally online,
mostly from senior citizens and people with disabilities who said the bill could
criminalize their right to sexual expression.

The bill, an amendment to the state's laws prohibiting child pornography, was meant to protect people with mental disabilities, who cannot give consent and are often exploited sexually by caretakers or family members, said Reinstein, a Democrat from Revere.

Reinstein said she was approached in January by Elizabeth Scheibel, the district attorney in Hampshire County, and the state Disabled Persons Protection
Commission which described several disturbing cases.

"Basically, there's an issue of caretakers taking explicit photographs of elders and people with disabilities against their will," she said in a phone interview.

After consulting with advocacy groups about the legitimacy of the problem, Reinstein said she agreed to sponsor the bill. But it was written, she said, by a legislative committee, and the language is what has spurred the controversy.

Part of the bill states that people over age 60 and people with disabilities who have been declared mentally incompetent cannot give consent to erotic photographs, any more than a minor can give consent. But other parts of the bill only use the term "elders and persons with a disability," without referencing mental competence or consent.

As a result, said University of California-Los Angeles law professor Eugene Volokh, the bill could be interpreted as banning competent, consenting couples with disabilities from taking nude photographs of each other, or lovers over age 60 from making saucy pictures of themselves.

"If the law was limited to [the mentally incompetent], I wouldn't be mocking it," he said, adding, "let me be more academic: I wouldn't be condemning it as I have been."

To his knowledge, Volokh said, no other state has a law that criminalizes sexual pictures of senior citizens or adults with disabilities regardless of consent.

Volokh said a contact sent him news of the bill, which he wrote about on his legal blog, "Hard to see how this would be constitutional, or why it would make much sense," he wrote.

From there other bloggers took up the cause.

"Reinstein's law goes way too far," wrote Florida lawyer and blogger Marc Randazza. "Under this law, if my mom and dad want to set up the ol' video camera in their bedroom and make some in-home entertainment, they would be looking at 10 or 20 years in prison."

The bill seemed particularly goading to people with disabilities, who often have been stereotyped as asexual or childlike.

"This kind of bill does perpetuate that stigma . . . that once you reach a certain age, or if you have a disability you are no longer sexually attractive, no longer able to have an intimate relationship," said Stanley Ducharme, a Boston psychologist who specializes in sexuality and disabilities. "The whole thing smacks of the idea that there's something negative about sexual expression and seeing an erotic image of an elderly person or a disabled person."

Judy Norsigian, executive director of the Cambridge-based women's health collective Our Bodies Ourselves, said the bill, as it's written, blocks free expression.

"This is legislation that's trying to protect a vulnerable population from abuse," she said. "But it has to be carefully worded so as not to infringe on free speech rights."

As word of the bill spread, calls and e-mails began to inundate Reinstein's office.

"I was kind of blown away," she said. "We got a lot of e-mails from people who were technically classified as disabled, saying, 'How could you take my rights away?' "

She said she'd intended the bill to address solely nonconsensual exploitation.

"I'm not criminalizing sexual activity between consenting adults," she said. "In no way shape or form was that the intent of it. . . . If there's people who on their own will want to go and participate in this stuff, knock yourself out."

The vehement reaction prompted the Disabled Persons Protection Commission to place a disclaimer on its website, explaining that the bill "is targeted to address only the sexual exploitation of legally incompetent elders and persons with disabilities and . . . legally competent elders and persons with disabilities who do not consent" to erotic photographs.

"The intent was not to criminalize people who are competent to make decisions," said Emil DeRiggi, the commission's spokesman.

The bill, which was cosponsored by representatives Frederick Berry, Benjamin Downing, Thomas Kennedy, and Pam Richardson, is currently before the House judiciary committee.

Because of the protests, the bill's language will probably be changed before it comes to a vote, Reinstein said.

"If there are all these people who are questioning it, you have to take notice of that," she said. "And it makes sense that consensual rights are protected as well."