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The ‘Perils’ of an Identity Politics Approach to the Legal Recognition of Harm

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Abstract

In the past, and it still remains the case, people with learning difficulties who are victims of violence have been cast as being in need of protection rather than rights and justice. Such an approach belies an institutionalised perspective of harm that does not readily engage with criminal justice structures or solutions. At the same time, Sect. 146 of the Criminal Justice Act 2003 gives the court the power to pass enhanced sentences where it can be proven that a crime was motivated by hostility towards someone because s/he is disabled. However, this provision may simply remain a symbolic pledge to equality that fails to tackle the complex and deep rooted causes of violence and oppression in modern society. The consequences of automatically turning to hate crime ‘solutions’ have yet to be explored. This article will draw from the ideas of a number of thinkers in the context of diverse activism to construct a bridge between current debates about how to theorise and tackle violence and oppression in the modern world and the campaigns fought by people with learning difficulties and their supporters. The hope is that this exercise will not only help people with learning difficulties to access the current debate but will further develop current thinking about how to understand and tackle violence in the modern world.

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Notes

  1. A note about terminology: I use the term people with learning difficulties rather than people with learning disabilities because the former is the preferred term of the civil rights movement (also known as the self-advocacy movement) of people with learning difficulties, many of whose members say that the latter label symbolizes the medicalisation of their impairment and the oppression of their rights and freedoms by professionals who created and routinely apply this label to them.

  2. Crown Prosecution Service (2007).

  3. Department of Health (2007), Sect. 17.

  4. Fraser (2000, pp. 107–120).

  5. Brown (1995).

  6. Ray and Smith (2001, pp. 203–221 at 211).

  7. Boyd et al. (1996, pp. 819–850, 567–606).

  8. Grattet and Jenness (2001, pp. 653–697).

  9. Ibid (2001, p. 686).

  10. Waxman (1991, pp. 185–197, 188).

  11. Lawrence (1999).

  12. See Footnote 8, p. 686.

  13. See Footnote 8, p. 688.

  14. For an account of US state and federal provisions, See Jenness (2001, pp. 279–308).

  15. The same provisions apply to crimes motivated by hostility towards a person’s sexuality.

  16. http://www.disabilitynow.org.uk/the-hate-crime-dossier.

  17. http://davehingsburger.blogspot.com/.

  18. Mencap (1999).

  19. See Footnote 18, p. 2.

  20. See Footnote 18, p. 10.

  21. Taylor (1997, p. 36).

  22. Shakespeare (2001, pp. 9–28, 17).

  23. See Footnote 4, p. 114.

  24. Ibid.

  25. Sect. 37 (e) Abortion Act 1967.

  26. See e.g. http://www.mencap.org.uk/html/about_mencap/changing_attitudes.htm.

  27. Mental Health Media (2001), http://www.mhmedia.com/products/learning.html#perfect.

  28. See Department of Health (2007).

  29. See Department of Health (2001).

  30. Turning Point (2004).

  31. LAC (2004, p. 9), Department of Health (2004).

  32. See Mencap (1999) above.

  33. Disability Rights Commission (2006).

  34. http://www.strategy.gov.uk/downloads/work_areas/disability/disability_report/disability_02current.htm.

  35. Shakespeare (2001, pp. 9–28, 17).

  36. Morris (1991, p. 27, cited in Shakespeare 1997, pp. 217–233, 224).

  37. Northern Echo 30 January 2008.

  38. Fraser (1995, pp. 68–93, p. 82).

  39. See Footnote 5, p. 28.

  40. Liggett quoted in Shakespeare, see footnote 36, p. 20.

  41. See Footnote 5, p. 7.

  42. Carmody (2001, pp. 4–9, 7).

  43. See Footnote 21, p. 71.

  44. Sen (2006, p. 17).

  45. See Footnote 4, p. 112.

  46. Mason (2001, pp. 253–278, 255).

  47. Boyd (1999, pp. 369–385, 380).

  48. Jacobs and Potter (1998, p. 145).

  49. Maloney quoted in MacPhail (2002, pp. 261–227, 276).

  50. See www.grapevine.org.uk.

  51. See Footnote 5, p. 59.

  52. See Footnote 5, p. 4.

  53. Brown 1995, quoted in Moran and Skeggs (2001, p. 27).

  54. See Footnote 54.

  55. See Footnote 39, pp. 82–83.

  56. See Footnote 21, p. 67.

  57. See Footnote 21. p. 70.

  58. Interviewee B.

  59. Interviewee A.

  60. Interviewee A.

  61. Rosga (2001, pp. 223–252, 251).

  62. MacPherson (1999).

  63. Foster et al. (2005).

  64. CPS Single Equality Scheme (London: CPS 2006).

  65. Waxman (1991, pp. 185–197, 191).

  66. See Footnote 66, p. 190.

  67. Interviewee A.

  68. This is difficult to know as there has never been a national study of violence against disabled people which looks at this particular issue.

  69. To give an example, Montana’s ‘sentence enhancement law’ states: ‘a person who has been found guilty of any offense…that was committed because of the victim’s race, creed’. In this case no evidence of hostility is necessary and if applied to disabled people, much of the discriminatory/actuarial violence would be caught. See Footnote 8, p. 661.

  70. See Footnote 48, p. 378.

  71. Ibid.

  72. Bunch cited in Boyd. See Footnote 48, p. 382.

  73. See Footnote 48, p. 382.

  74. See p. 9.

  75. See Footnote 5, p. 65.

  76. See Footnote 5, p. 74.

  77. Interviewee A.

  78. Interviewee B.

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Authors and Affiliations

  1. Equality and Diversity Unit, Crown Prosecution Service, 50 Ludgate Hill, London, EC4M 7EX, UK

    Joanna Perry

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Correspondence to Joanna Perry.

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Joanna Perry is a policy adviser at the Crown Prosecution Service. This article is written in a personal capacity and the views expressed are not those of the CPS.

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Perry, J. The ‘Perils’ of an Identity Politics Approach to the Legal Recognition of Harm. Liverpool Law Rev 29, 19–36 (2008). https://doi.org/10.1007/s10991-008-9034-9

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