Academic journal article Law & Society Review

Disability, Rights, and the Construction of Sexuality in Tort Claims

Academic journal article Law & Society Review

Disability, Rights, and the Construction of Sexuality in Tort Claims

Article excerpt

Disability is intrinsic to the human condition and part of human variation, yet sexuality of disabled persons challenges existing social perceptions of both sexuality and disability. While traditional views of the two were developed within the medical framework of normalcy and deviance, contemporary theories push for an affirmative view that upholds a rights-based approach to disability and sexuality and emphasize disability pride and sexual pleasure (Shakespeare 2000; Swaine and French 2000).

International and domestic civil and human rights instruments have failed to address and develop the right to sexuality of disabled persons despite its clear importance to identity and social movements (Perlin and Lynch 2016; Schaaf 2011). Sexual rights activism, initially lead by the LGBTQ movement, has defined sexual expression and pleasure as its core, yet its legal achievements have mostly been in the arenas of sexual health and reproduction (Bell and Binnie 2000; Seidman 2001). At the same time, disability rights activism has developed a comprehensive rights framework encompassing almost all spheres of life but has been rather quiet about the disabled body as a sexual body (Shakespeare and Richardson 2018; Tepper 2000).

This study is about how courts define the sexuality of disabled persons in the absence of a formal right to sexuality. It examines the diffusion of a disability rights approach into tort law as a realm of law that is ungoverned by direct disability rights legislation. Tort law has emerged as a significant arena in which to observe the ways courts shape the meaning of disability and sexuality as they converge in the lives of disabled persons.

We provide a disability legal studies analysis of compensation for harm to sexual functioning in Israeli personal injury law and interrogate how legal, social, medical, and healthcare policy developments have affected courts' rhetoric and reasoning, and the types of remedies that have been provided. Disability legal studies combines the tenets of disability studies and critical legal theory, including sociolegal theory. Together with disability activists, disability studies scholars have endeavored to transform the prevailing social and cultural meanings of disability from an individual and medical approach to a social and affirmative approach that accepts disabled persons as full and equal members of society (Oliver 1990; Shakespeare, 2006; Swaine and French 2000). The legal manifestations of this shift are the introduction of disability rights discourse and the enactment of national and international disability rights instruments (Heyer 2015a; Stein and Stein 2007). These instruments cover a wide range of rights, from access and employment to housing and education.

In addition, disability scholars and activists have become interested in sexuality as an essential part of human life and as emblematic to the marginalized place of disabled persons in society (Shakespeare 2000; Shuttleworth and Mona 2002). Sexuality poses a unique challenge to the prevailing individual-medical model of disability and to a human rights framework: it assumes an affirmative, nontragic understanding of life with a disability, and it is yet to be acknowledged as a formal legal right in national and international law. Studying sexuality also raises questions concerning other marginalized bodies, such as females' and older persons' bodies, and calls attention to intersectionality and its implications.

Our work looks into the role of courts in the legal construction of sexuality and disability, with special attention to relationships between the language they employ and the remedies they provide (Rollins 2002; Vanhala 2011; Vogler 2016). We observe changes in the understanding of sexuality of disabled persons in personal injury court decisions and detect the presence of a social approach to disability even if only implied or unintentional. We view tort law, specifically personal injury law, as the law of disablement; that is, a field of law that concerns the transformative process of becoming disabled and the state's response to that process (Bloom and Miller 2011; Mor 2018). …

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