Sexual Images of the Disabled: Law Aims to Protect the Legally Incompetent  

Leroy Moore’s naked body is slender and sinewy, but his unsteady gait and arms that swing like the white scarf that hangs from his mouth reveal his vulnerability. A poet reads—Do you come open or do you come trapped by your own inhibitions and fears of the perfect body, the perfect erotic?—as he kneels on the ground.

Sensual imagery, like this, form the core of Sins Invalid, a San Francisco-based performance group that examines the intersections between disability and sexuality. Director Patty Berne hopes that through art, through expression, through social justice, Sins Invalid is breaking stereotypes.

“In a able-ist society, people with disabilities are seen as asexual and the idea of them as sexual beings is viewed as perverted,” Berne says. “Disability oppression infantilizes us.”

That’s why she, and other disability advocates, have voiced concern over a Massachusetts bill that would make sexual images of non-consenting seniors and adults with disabilities illegal—in the same way child pornography is. Those found guilty of exhibiting or distributing such material could face criminal charges of up to twenty years in jail.

“It implies that if you have a disability, you can’t give informed consent,” Patty Berne says. “It’s absurd and paternalistic.”

Placing seniors and people with disabilities in the same category as children cuts to the core of the discrimination that confronts these two groups. She lists the everyday indignities she experiences: at restaurants, she is given children’s menus; on the street, strangers hand her money or pray for her; people greet her by patting her on the head.

“This is our lived daily experience,” she says. “These consistent acts of disregard and disrespect have a cumulative impact on people. For some, it undermines their self-esteem; they may be less likely to want to engage in the social world. For those of us with an activist streak, it reinforces our commitment to social justice.”

When Nude Pictures and Porn are Legal

Nancy Alterio, the director of the Massachusetts Disabled Persons Protection Commission, is equally passionate about disability rights. A supporter of the bill, she points out that its intent is to target only those who are legally incompetent. The term usually applies to people with a diminished mental capacity, as determined by the courts, but can also pertain to those with certain physical impairments.

“The last thing we want to do is infringe upon the rights of people with disabilities,” she says. “We want to make sure that seniors or people with disabilities who are legally incompetent have equal access to the criminal justice system.”

Current laws are inadequate when dealing with cases of the production or distribution of sexual images of seniors or disabled people who are legally incompetent, supporters say. Such activity is not a criminal offense. For example, Alterio describes one incident in which a father took pornographic photos of his severely mentally disabled adult daughter. In another incident, two caretakers photographed a man with cerebral palsy, while he was being bathed. The man, who only spoke through a communication board, was unable to say, “no.”

“There was nothing law enforcement could do,” Alterio says.

In general, producing or distributing sexually explicit images of people, whether they consent or not, is not against the law, except for cases involving children. Like children, legally incompetent adults are particularly vulnerable and deserve special protection under the law, according to the bill’s supporters. Though research and data is limited, the National Council on Disability reports that women with developmental disabilities are at 4 to 10 times greater risk of sexual assault than the general female population. Other studies suggest that 70 percent of women with a wide variety of disabilities are victims of sexual violence sometime in their lives.

Sexual exploitation and assaults against people with disabilities and the elderly may not be increasing, but at least anecdotally, more people are coming forward, according to Alterio. “As professionals, my counterparts and I, including people who work with elders as well, are seeing more and more cases, but that may be because there has always been such a high level of under-reporting for these populations.”

She adds: “It’s appalling to see people take advantage of people with disabilities, and we see it everyday.”

Sponsored by Massachusetts Rep. Kathi-Anne Reinstein, House Bill 1688 was drafted in collaboration with numerous government offices and advocacy groups, including Alterio’s Disabled Persons Protection Commission, as well as the Department of Mental Health, the Massachusetts Rehabilitation Commission, and the District Attorney’s office.

“In Massachusetts, we have strong partnerships and together we vetted the draft of the bill. There was an openness to constructive advice,” Alterio says. “Most of the opposition to the bill has come from California.”

Porn Pervs and the Bad Legislation Buffet

In the blogosphere, much of the response to Rep. Reinstein’s bill has taken on a sensational tone. Last month the Boston Herald blared, “State puts porn pervs in sights”, while The Legal Satyricon declared:

“The measure misses the mark and as it is an affront to the dignity of the elderly and the disabled alike with a heaping helping of unconstitutionality to round out the bad legislation buffet.”

Perhaps, though, the conflict between supporters and detractors is more a misunderstanding than an ideological clash. The legislation would amend Chapter 272, Section 29A of the General Laws of Massachusetts—“Posing or exhibiting child in state of nudity or sexual conduct; punishment”—to include offenses against “an elder or a person with a disability adjudicated as incompetent by a court of the commonwealth.” In other words, cases involving competent adults, no matter what their age or ability, would not be prosecutable.

Still, Berne believes rather than focusing all the attention on criminalizing certain acts, just as much or more emphasis should be placed on education and prevention. People with disabilities will not achieve true equality until society’s perceptions of them change.

As a child, Berne was routinely put on display for doctors to study, experiences that she describes as “incredibly dehumanizing.” Such sanctioned treatment toward people with disabilities legitimizes able-ism. And in turn, able-ism, like racism, has the power to incite further violence and exploitation.

“We can’t take violence out of the broader context of other institutions of power: We are targeted as less-than by the medical-industrial complex; many people with disabilities still live in institutionalized settings” she says. “These are symptoms of the broader forces of able-ism.”

Such philosophy runs counter to Reinstein’s bill, which, to some, further stigmatizes a subset of disabled adults and elders by equating them with children. If the bill had created a new law rather than amending an old one dealing with child exploitation, perhaps fewer people would have found it offensive. Except, of course, the libertarians. But that’s another story.