'There Must Be Some Way Out of Here': Why the Convention on the Rights of Persons with Disabilities is Potentially the Best Weapon in the Fight Against Sanism
Michael L. Perlin
New York Law School
June 21, 2013
20 PSYCHIATRY, PSYCHOL. & L. 462 (2013)
NYLS Clinical Research Institute Paper No. 34/2013
NYLS Legal Studies Research Paper 12/13 #77
It is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism permeates all aspects of the legal system – judicial opinions, legislation, the role of lawyers, juror decision-making – and the entire fabric of society. For those unfamiliar with the term, I define "sanism" as an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact finders, counsel, and expert and lay witnesses.
Notwithstanding over two decades of anti-discrimination laws and, in many jurisdictions, an impressive corpus of constitutional case law and state statutes, the attitudes of judges, jurors and lawyers often reflect the same level of bigotry that defined this area of law half a century ago. The reasons for this are complex and, to a great extent, flow from centuries of prejudice – often hidden prejudice, often socially acceptable prejudice – that has persisted in spite of prophylactic legislative and judicial reforms, and – at least superficially – an apparent uptick in public awareness. I have railed multiple times about the "irrational," "corrosive", "malignant" and "ravaging" effects of sanism, but its "pernicious power" still poisons all of mental disability law.
The recently-ratified Convention on the Rights of Persons with Disabilities (CRPD) is the most revolutionary international human rights document – ever – that applies to persons with disabilities. The Disability Convention furthers the human rights approach to disability and recognizes the right of people with disabilities to equality in most every aspect of life. It firmly endorses a social model of disability – a clear and direct repudiation of the medical model that traditionally was part-and-parcel of mental disability law. It calls for "respect for inherent dignity" and "non- discrimination." Subsequent articles declare "freedom from torture or cruel, inhuman or degrading treatment or punishment," "freedom from exploitation, violence and abuse," and a right to protection of the "integrity of the person."
In this paper, I consider the impact that the Convention is likely to have on sanism. First, I will briefly discuss both our sanist past and our sanist present. Then, I will consider how the CRPD has the greatest potential for combating sanism, and for changing social attitudes. In this latter inquiry, I will also draw on the tools of therapeutic jurisprudence. Then, I will offer some brief and modest conclusions.
Number of Pages in PDF File: 16
Keywords: mental disability law, sanism, international human rights, Convention on the Rights of Persons with Disabilities
Date posted: June 22, 2013 ; Last revised: June 24, 2013