THE STRUCTURAL DESEXUALIZATION OF DISABILITY

THE STRUCTURAL DESEXUALIZATION OF DISABILITY

Sexuality is integral to the human experience. Yet choices related to sexuality—sex, intimate relationships, marriage, pleasure, and childbearing—are often controlled for people with intellectual and developmental disabilities. Discourse on sexuality primarily focuses on acts of sexual violence against this community, emphasizing a victim–perpetrator binary. This binary view directs legal and policy efforts to ameliorate this sexual violence, emphasizing victimhood and protectionism.

But individuals with intellectual and developmental disabilities—like members of the broader population—desire to experience love and intimacy; engage in sexual pleasure and self-expression; and exercise choices around sexuality and reproduction. Legal scholarship has undertheorized how state systems that are central in the lives of people with intellectual and developmental disabilities normalize the subjugation of sexual and reproductive choices.

This Article fills this void by applying a new structural desexualization of disability framework to identify the ways that legal structures and social norms act in concert to harm people with intellectual and developmental disabilities in matters of sexuality. This Article examines three disability systems through this new framework: guardianship, special education, and the Home- and Community-Based Services Waiver program.

This is the first legal Article to situate the structural desexualization of disability as a constitutive element in perpetuating sexual violence against people with intellectual and developmental disabilities. This Article aims to encourage discourse, advocacy, policymaking, and organizing around issues that affect sexuality by reframing the victim– perpetrator binary. It further seeks to reposition sexuality as a community integration priority under the Americans with Disabilities Act.

The full text of this Article can be found by clicking the PDF link to the left.

“Sexuality is often the source of our deepest oppression; it is also often the source of our deepest pain. It’s easier for us to talk about—and formulate strategies for changing—discrimination in employment, education, and housing than to talk about our exclusion from sexuality and reproduction.”

—   Anne Finger. 1 Anne Finger, Forbidden Fruit, New Internationalist, July 1992, at 8, 9.

Introduction

Sexuality is an aspect of one’s life that is inseparable from the other complex layers of the human experience. It encompasses sexual self-expression, “sex, gender identities and roles, sexual orientation, eroticism, [sexual] pleasure, intimacy and reproduction.” 2 Defining Sexual Health, WHO, https://www.who.int/teams/sexual-and-reproductive-health-and-research/key-areas-of-work/sexual-health/defining-sexual-health [https://perma.cc/KK8L-VPHH] (last visited June 29, 2024) (internal quotation marks omitted) (quoting WHO, Defining Sexual Health: Report of a Technical Consultation on Sexual Health 28–31 January 2002, Geneva 5 (2006), https://www.cesas.lu/perch/resources/whodefiningsexualhealth.pdf [https://perma.cc/LCT7-22CG]); see also Shirley Lin, Dehumanization “Because of Sex”: The Multiaxial Approach to the Rights of Sexual Minorities, 24 Lewis & Clark L. Rev. 731, 742 (2020) (discussing the fluidity of sexual self-identification and explaining that “for millions of individuals . . . sex cannot be deemed only biologically external, immutable, or dimorphic”). It influences one’s actions, self-esteem, behavior, thoughts, feelings of self-worth, and interpersonal interactions. 3 Miriam Taylor Gomez, The S Words: Sexuality, Sensuality, Sexual Expression and People With Intellectual Disability, 30 Sexuality & Disability 237, 237 (2012). Legal scholarship has undertheorized how state systems that are central in the lives of people with intellectual and developmental disabilities 4 This Article interchanges between using identity-first and person-first language to reflect the differing views on the use of language when writing about disability. In academia, for example, person-first language is largely the default (i.e., people with a disability) when discussing disability. Many in the disabled community choose identity-first language. See, e.g., Lydia X.Z. Brown, The Significance of Semantics: Person-First Language: Why It Matters, Autistic Hoya (Aug. 4, 2011), https://www.autistichoya.com/2011/08/significance-of-semantics-person-first.html [https://perma.cc/ZY9N-R4QH] (“In the autism community, many self-advocates and their allies prefer terminology such as ‘Autistic,’ ‘Autistic person,’ or ‘Autistic individual’ because we understand autism as an inherent part of an individual’s identity . . . .”). normalize the control and subjugation of intimate, sexual, and reproductive choices and how these systems exact enduring harms.

This Article is the first to apply a structural desexualization of disability framework to identify the invisible ways that legal, social, political, historical, and economic structures and norms act in concert within state systems to exact harm on people with intellectual and developmental disabilities in matters of sexuality. These structures and norms then work to create conditions of normalized human suffering. 5 The concept of “structural violence” informs the structural desexualization of disability framework. See infra note 230. “Structural violence is a process that works slowly through general misery, diminishing the dignity of human beings . . . .” Bandy X. Lee, Violence: An Interdisciplinary Approach to Causes, Consequences, and Cures 125 (2019) [hereinafter Lee, Violence]. It “occurs through economically, politically, or culturally driven processes that work together . . . to limit [persons] from achieving full quality of life.” Id. at 123 (citing Akhil Gupta, Red Tape: Bureaucracy, Structural Violence, and Poverty in India 19–25 (2012)). It encompasses types of violence that are “reworked through the routines of daily life as well as enacted through social relations and social institutions.” Linda Green, Comment on Paul Farmer, An Anthology of Structural Violence, Sidney W. Mintz Lecture in Anthropology at Johns Hopkins University (Nov. 27, 2001), in 45 Current Anthropology 305, 320 (2004). The concept of structural violence is applied to identify forms of violence that are built into structural systems and manifest to create inequality in the distribution of power, wealth, and resources. Johan Galtung, Violence, Peace, and Peace Research, 6 J. Peace Rsch. 167, 175 (1969) [hereinafter Galtung, Violence, Peace, and Peace Research]; see also Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor 29–31 (2003) (discussing the conditions of human suffering that are built within the structures of society and are not often “effectively conveyed by statistics or graphs” but are experienced by those “occupying the bottom rung of the social ladder in inegalitarian societies”). This framework situates the structural desexualization of disability as a constitutive element in maintaining and perpetuating the sexual violence experienced by people with intellectual and developmental disabilities. In doing so, it identifies the structural desexualization of disability as the cumulative root cause of both the interpersonal violence and indirect forms of harm that this community experiences.

Individuals with intellectual and developmental disabilities share the same desire to experience love and intimacy, engage in sexual pleasure and sexual self-expression, and exercise choices around sexuality and reproduction as the broader population. 6 See, e.g., Tom Shakespeare, Disabled Sexuality: Towards Rights and Recognition, 18 Sexuality & Disability 159, 164–65 (2000) (“[O]ne of the tasks for us here, and in our work, is to put private desires and personal relationships on the agenda of the disability movement, to make them an arena for change.”); see also In re D.D., 19 N.Y.S.3d 867, 875 (Sur. Ct. 2015) (“The right to have a family of one’s own is not reserved only for persons with no disabilities, and the yearning for companionship, love, and intimacy is no less compelling for persons living with disabilities.”). The In re D.D. court reasoned that “these are choices central to . . . personal dignity and autonomy and [the] pursuit of happiness.” In re D.D., 19 N.Y.S.3d at 875. “Desexualization is the process of stripping disabled people of sexual agency and autonomy.” 7 Lydia X.Z. Brown, Ableist Shame and Disruptive Bodies: Survivorship at the Intersection of Queer, Trans, and Disabled Existence, in Religion, Disability, and Interpersonal Violence 163, 164 (Andy J. Johnson, J. Ruth Nelson & Emily M. Lund eds., 2017) [hereinafter Brown, Ableist Shame]; see also Elizabeth Emens, Intimate Discrimination: The State’s Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307, 1338 (2009) (discussing “normative desexualization” as the “utter exclusion of disabled people from the intimate realm—not just relegation or segregation to pairing only within one’s group”). It is the loss of self-determination in matters of sexual self-expression and reproduction. 8 Brown, Ableist Shame, supra note 7, at 164. It is the erasure of one’s “sexual identity or experience.” 9 Id. It creates often-insurmountable barriers to engaging in sexual desire or choosing to be the object of sexual desire. 10 Id.

The structural desexualization of disability is experienced through the day-to-day indignities that result from the stripping of: sexual agency; sexual self-determination; and opportunities to engage in sexual self-expression, pleasure, and desire. It is embodied through the erosion of personhood, loss of bodily autonomy, diminishment of self-worth, and other losses of dignity that result from this desexualization. It is felt as a result of the barriers erected that limit opportunities to develop healthy sexual and intimate relationships; make reproductive choices; and access sexual health education, supports, services, and reproductive care. It is experienced through the withholding of knowledge and information on how to protect one’s body and how to identify when one’s body is violated.

The breadth of what sexuality encompasses in one’s life speaks to “[t]he magnitude of damage” that flows from the structural desexualization of disability. 11 Lee, Violence, supra note 5, at 124 (“The magnitude of damage warrants calling [structural violence] violence rather than simply social injustice or oppression.”). Consider the case of Britney Spears. Spears gained nationwide attention following the release of her testimony in court for the removal of the thirteen-year conservatorship 12 Conservatorship is also referred to in some states as guardianship. See infra section III.A (discussing the legal process of guardianship). to which she was subjected by her father. In her hearing to remove her conservatorship, Spears testified:

I want to be able to get married and have a baby. I was told right now in the conservatorship I’m not able to get married or have a baby. I have an [IUD] inside of myself right now so I don’t get pregnant. I wanted to take the [IUD] out so I could start trying to have another baby, but this so-called team won’t let me go to the doctor to take it out because they don’t want me to have children, any more children. So basically this conservatorship is doing me way more harm than good. 13 Reporter’s Transcript of Proceedings at 25, In re the Conservatorship of: Britney Jean Spears, No. BP108870 (Cal. Super. Ct. filed June 23, 2021) (on file with the Columbia Law Review).

To those familiar with conservatorship, Spears’s testimony was not a “bombshell” 14 Erin Snodgrass, One of Britney Spears’ Co-Conservators Says Her Entire Medical Team Agrees Her Dad Should Be Removed From Guardianship, Bus. Insider (July 26, 2021), https://www.businessinsider.com/britney-spears-medical-team-dad-should-be-removed-guardianship-2021-7 [https://perma.cc/2N7D-36SM]. or “stunning assertion[],” 15 Jan Hoffman, Is the Forced Contraception Alleged by Britney Spears Legal?, N.Y. Times (June 24, 2021), https://www.nytimes.com/2021/06/24/health/britney-spears-forced-IUD.html (on file with the Columbia Law Review) (last updated Aug. 12, 2021). as maintained by media outlets and pundits who questioned the legality of whether Spears could be forced to maintain birth control under conservatorship to avoid pregnancy. Rather, Spears’s testimony illustrates the normalized sexual and reproductive control that is inflicted through the “coercive function[]” of conservatorship. 16 Claire Spivakovsky & Linda Roslyn Steele, Disability Law in a Pandemic: The Temporal Folds of Medico-Legal Violence, 31 Soc. & Legal Stud. 175, 177 (2022) (discussing how guardianship laws were used to perpetuate forms of “legal violence” against disabled people during the COVID-19 pandemic in Australia); see also Robyn M. Powell, Disability Reproductive Justice, 170 U. Pa. L. Rev. 1851, 1854–55 (2022) [hereinafter Powell, Disability Reproductive Justice] (“[T]hat people with actual or perceived disabilities—including physical, intellectual, sensory, and psychiatric disabilities—should be denied reproductive autonomy remains a persistent, unrelenting belief plaguing our nation.”); Sara Luterman, For Women Under Conservatorship, Forced Birth Control Is Routine, The Nation (July 15, 2021), https://www.thenation.com/article/society/conservatorship-iud-britney-spears/ (on file with the Columbia Law Review) (reporting on Spears’s testimony and the coercive nature of a conservatorship).

As Spears wrote in her 2023 memoir, The Woman in Me, “The conservatorship was created supposedly because I was incapable of doing anything at all—feeding myself, spending my own money, being a mother, anything.” 17 Britney Spears, The Woman in Me 173 (2023); see also Cal. Prob. Code § 1800.3 (2024) (outlining the statutory requirements for the appointment of a conservator). Through the appointment of a conservatorship, the court determined that Spears lacked “legal mental capacity” to make decisions about her life. 18 Jan Hoffman, Testing Britney Spears: Restoring Rights Can Be Rare and Difficult, N.Y. Times (July 23, 2021), https://www.nytimes.com/2021/07/23/health/britney-spears-conservatorship.html (on file with the Columbia Law Review) (last updated Sept. 30, 2021). Spears’s father became the court-appointed conservator of Spears’s “person” and of her estate 19 Spears, supra note 17, at 166–67; see also Cal. Prob. Code § 1800.3. until the court dissolved the guardianship in 2021. 20 Joe Coscarelli & Julia Jacobs, Judge Ends Conservatorship Overseeing Britney Spears’s Life and Finances, N.Y. Times (Nov. 12, 2021), https://www.nytimes.com/2021/11/12/arts/music/britney-spears-conservatorship-ends.html (on file with the Columbia Law Review) (last updated Nov. 15, 2021). Under her conservatorship, Spears reverted to the legal status of a minor with her father assuming the legal right to make plenary decisions over all aspects of her personal and financial life. 21 Spears, supra note 17, at 166–68.

In her memoir, Spears further expressed, “My dad took my boyfriend away and I could not drive. My mom and dad took my womanhood from me.” 22 Id. at 173. She concluded a chapter of her book by sharing what her father said shortly after he was appointed her conservator: “I just want to let you know, . . . I call the shots. . . . I’m Britney Spears now.” 23 Id. at 175 (internal quotation marks omitted) (quoting Britney Spears’s father). Is it viewed as a form of harm and suffering when the guardianship system strips someone of their choices around intimate relationships, marriage, childbearth, and parenting? How would disability law and policy change if the removal of these vital decisions was viewed as harm that is built into the structures of society? 24 This Article is not debating whether guardianship should exist. Rather, it is questioning whether the nature of guardianship would change if certain aspects of the power exercised under guardianship were viewed as structural violence. The idea of abolishing guardianship as a system is, however, gaining traction as guardianship reforms expand across the country. See, e.g., Melissa Hellmann, Loss of Autonomy: How Guardianships Threaten People’s Rights, Ctr. for Pub. Integrity (June 24, 2022), https://publicintegrity.org/inside-publici/newsletters/watchdog-newsletter/autonomy-guardianships-threaten-rights/ [https://perma.cc/8RLX-2TY3] (discussing types of abuses that have occurred under guardianship while recognizing that a “desire to abolish” guardianship may hinder reform); Sara Luterman, Abolish Guardianship, Preserve the Rights of Disabled People, and Free Britney, The Nation (Mar. 6, 2021), https://www.thenation.com/article/society/guardianship-britney-spears/ (on file with the Columbia Law Review) (discussing how guardianship inherently strips disabled people of their humanity and arguing that alternatives to guardianship, such as supported decisionmaking, are necessary to preserve the civil rights of the individual under guardianship).

The outrage that swelled through the #FreeBritney movement 25 See, e.g., Bianca Betancourt, Why Longtime Britney Spears Fans Are Demanding to #FreeBritney, Harper’s BAZAAR (Nov. 12, 2021), https://www.harpersbazaar.com/‌
celebrity/latest/a34113034/why-longtime-britney-spears-fans-are-demanding-to-freebritney [https://perma.cc/XM3H-AHQ6] (“Britney fans have long been wary of the conservatorship terms and have often questioned whether it was in Britney’s best interest.”).
was arguably propelled by Spears’s whiteness, wealth, and international recognition, which still could not shield her from having her sexual and reproductive decisionmaking rights controlled through a state process. Take these privileges away, however, and the outrage disappears. It is well documented that people with intellectual and developmental disabilities 26 This Article limits its focus to people with intellectual and developmental disabilities. Developmental disability is an umbrella term that includes “a group of conditions due to an impairment in physical, learning, language, or behavior areas.” Developmental Disability Basics, CDC (May 16, 2024), https://www.cdc.gov/ncbddd/developmentaldisabilities/index.html [https://perma.cc/EV6R-YRMG]. Autism, Attention-Deficit/Hyperactivity Disorder (ADHD), intellectual disability, and cerebral palsy are examples of developmental disabilities. Id. A diagnosis of intellectual disability is assessed based on “significant limitations in intellectual functioning and adaptive behavior as expressed in conceptual, social, and practical skills, and age of onset before age 18.” Robert L. Schalock et al., Am. Ass’n Intell. & Developmental Disabilities Ad Hoc Comm. on Tech. & Classification, Intellectual Disability: Definition, Classification, and Systems of Supports 28 (11th ed. 2010). A determination of intellectual functioning considers “reasoning, planning, solving problems, thinking abstractly, comprehending complex ideas, learning quickly, and learning from experience.” Id. at 31. Adaptive functioning “is the collection of conceptual, social, and practical skills that all people learn in order to function in their daily lives.” Adaptive Behavior, Am. Ass’n on Intell. & Developmental Disabilities, https://www.aaidd.org/intellectual-disability/definition/adaptive-behavior [https://perma.cc/F6FM-57RX] (last visited July 28, 2024) (emphasis omitted). Conceptual skills include “language; reading and writing; and money, time, and number concepts.” Schalock et al., supra, at 44. Social skills include “interpersonal skills . . . and social problem solving.” Id. Practical skills include performing activities of daily living, such as caring for one’s health, maintaining a safe environment, managing finances, and using transportation. Id. Though helpful for framing this discussion, this Article also recognizes that precise definitions can fail to capture the full breadth of experiences of people with intellectual and developmental disabilities. See Sarah H. Lorr, Unaccommodated: How the ADA Fails Parents, 110 Calif. L. Rev 1315, 1325 (2022) (“In the context of [intellectual disability] . . . the broad diversity of who is included by the medical definition is not well expressed by rigid listings from a medical manual. The group is a heterogenous one with members having very different strengths and needs for supports.”). —a population that lacks access, privilege, and economic capital 27 See Nanette Goodman, Michael Morris & Kelvin Boston, Financial Inequality: Disability, Race and Poverty in America 5–6 (2019), https://www.nationaldisabilityinstitute.org/‌wp-content/uploads/2019/02/disability-race-poverty-in-america.pdf [https://perma.cc/24KV-JV4E] (explaining the compounding consequences of the relationship between disability and poverty). —have long endured control over their intimate, sexual, and reproductive decisionmaking through guardianship and other means. For disabled people who live at the intersection of marginalized identities, such as being Black, Indigenous, transgender, or queer, this control is often rote, exacted through societal processes and norms. 28 See, e.g., Nat’l Women’s L. Ctr., Forced Sterilization of Disabled People in the United States 8 (Jan. 24, 2022), https://nwlc.org/wp-content/uploads/2022/01/%C6%92.NWLC_SterilizationReport_2021.pdf [https://perma.cc/F4QG-J83X] (“Black disabled women are more likely to be sterilized than white disabled women.”); Amanda Collar, Indigenous Peoples’ Limited Access to Reproductive Care, 176 Annals Internal Med. 408, 408 (2023) (“Many people with the capacity for pregnancy have long faced hurdles to control their own bodies and decide to have children, or not, especially Indigenous peoples.”); Hannah G. Ginn, Securing Sexual Justice for People With Intellectual Disability: A Systematic Review and Critical Appraisal of Research Recommendations, 35 J. Applied Rsch. Intell. Disabilities 921, 922 (2022) (highlighting that “[a]cross studies, sexual and gender minority people with intellectual disability report experiencing erasure of their [sexual] identity within” the environment where they receive supports and services). But, unlike Spears, these deprivations are not elevated to importance in national dialogue. 29 See infra Part III (discussing the experiences of intellectually and developmentally disabled people whose sexuality was controlled, minimized, or weaponized to cause harm). They remain in the shadows, viewed largely by society as a natural aspect of what is required to protect this population. 30 See, e.g., Michael Gill, Already Doing It: Intellectual Disability and Sexual Agency 35–36 (2015) (“[T]he concept of intellectual disability assumes that people are unable to adequately advocate for themselves and need constant supervision and support. Individuals are assumed vulnerable to sexual abuse and exploitation . . . [and as such,] their sexual rights should be protected while their sexual expression should be shunned and silenced.”). The predominant “focus on violence, abuse, victimization, stigmatization, and control” results in, “at best,” individuals with intellectual and developmental disabilities “receiving little to no education about sexuality and reproduction and/or having their opportunities for sexual expression taken away, and at worst, contributes to eugenic practices.” 31 Carli Friedman, Sexual Health and Parenting Supports for People With Intellectual and Developmental Disabilities, 20 Sexuality Rsch. & Soc. Pol’y 257, 257 (2022) [hereinafter Friedman, Sexual Health and Parenting Supports] (citations omitted); see also Alice Wong, Introduction to Disability Intimacy, at xv, xviii (Alice Wong ed., 2024) (discussing how little public information is available on “disability intimacy,” noting that in researching for her book, Disability Intimacy, “[a]rticles on stereotypes, stigmas, . . . sexual abuse, and sexual dysfunction abounded”).

When national attention is given to issues of sexuality and people with intellectual and developmental disabilities, the focus is often on stories that sensationalize 32 See Brown, Ableist Shame, supra note 7, at 167 (observing that sensationalized news stories that focus on sexual violence against a disabled person are “typically accompanied by an entire panoply of ableist tropes designed to either further accentuate the monstrosity of the perpetrator or to deny any semblance of humanity and personhood to the disabled survivor”). acts of sexual violence 33 Throughout this Article, the term “sexual violence” is used as an umbrella term to include sexual assault and sexual abuse. This Article is informed by the definitions provided by The Arc, a national organization that focuses on “[p]romoting and protecting the human rights of people with intellectual and developmental disabilities and actively supporting their full inclusion and participation in the community throughout their lifetimes.” The Arc, https://thearc.org [https://perma.cc/NJF3-NWEZ] (last visited July 15, 2024). As described by The Arc, Assault is a crime of violence, anger, power and control where sex is used as a weapon against the victim. It includes any unwanted sexual contact or attention achieved by force, threats, bribes, manipulation, pressure, tricks, or violence.” Leigh Ann Davis, The Arc, People With Intellectual Disabilities and Sexual Violence (2011), http://www.thearc.org/wp-content/uploads/forchapters/Sexual%20Violence.pdf [https://perma.cc/NTD7-JWEE]. Sexual assault “may be physical or non-physical and includes rape, attempted rape, incest and child molestation, and sexual harassment. It can also include fondling, exhibitionism, oral sex, exposure to sexual materials (pornography), and the use of inappropriate sexual remarks or language.” Id. Sexual abuse “is a pattern of sexually violent behavior that can range from inappropriate touching to rape. The difference between the two is that sexual assault constitutes a single episode whereas sexual abuse is ongoing.” Id. against this community. These stories emphasize a victim–perpetrator binary: There is a victim who experienced identifiable harms and a perpetrator to hold accountable. 34 See, e.g., Daniel Engber, The Strange Case of Anna Stubblefield, N.Y. Times Mag. (Oct. 20, 2015), https://www.nytimes.com/2015/10/25/magazine/the-strange-case-of-anna-stubblefield.html (on file with the Columbia Law Review) (documenting the case of Anna Stubblefield, a professor criminally convicted of aggravated sexual assault for having sex with D.J., a twenty-eight-year-old man with an intellectual disability who does not communicate verbally and is described as an adult who wears diapers, scoots on the floor, and chirps when excited); Robert Hanley, Verdict in Glen Ridge; 4 Are Convicted in Sexual Abuse of Retarded New Jersey Woman, N.Y. Times, Mar. 17, 1993, at A1 (discussing a highly publicized case through infantilizing descriptions of the disabled person: “[P]opular high school athletes clustered around a childlike 17-year-old schoolmate who idolized them and coveted their friendship and then” violently sexually assaulted her); Jeff Bonty, Jacklin Sentenced to 18 Years in Sexual Assault Conviction, Daily J. (Jan. 27, 2023), https://www.daily-journal.com/news/crime/jacklin-sentenced-to-18-years-in-sexual-assault-conviction/article_7074974a-9db1-11ed-8fff-7fce2c235490.html (on file with the Columbia Law Review) (reporting on a Catholic priest in Illinois who was sentenced to eighteen years in prison after being convicted of sexually assaulting an intellectually disabled resident of a developmental center, who is described as having an IQ of forty-seven and “suffer[ing]” from partial paralysis). This binary view focuses on an interpersonal, individualized form of harm, which results in a dominant sexual violence narrative. The victim–perpetrator binary consumes and narrows society’s view of sexuality for people with intellectual and developmental disabilities. Discourse is confined to the individualized harm, victimhood, and the need for protection, thereby reinforcing a sexual violence narrative.

This view of sexuality attracts media headlines, which often surface fleeting conversations around what protective measures must be taken to safeguard intellectually and developmentally disabled people from this form of violence. 35 See, e.g., Victoria Brownworth, Raped, Abused, and Ignored: Disabled Women Are Invisible Victims, Dame (Jan. 31, 2019), https://www.damemagazine.com/2019/01/31/raped-abused-and-ignored-disabled-women-are-invisible-victims [https://perma.cc/EB8C-8DFY] (discussing the need to include disabled women in the #MeToo conversation).

In recent media, NPR reported on the disproportionate rate at which people with intellectual disabilities experience sexual violence, using unreported data from the DOJ. 36 All Things Considered, ‘She Can’t Tell Us What’s Wrong’, NPR, at 00:10 (Jan. 10, 2018), https://www.npr.org/transcripts/566608390 (on file with the Columbia Law Review). The data showed “people with intellectual disabilities are sexually assaulted at rates more than seven times those for people without disabilities,” 37 Id. at 02:00. with NPR using sensationalized language to describe this violence against the intellectually disabled community: “[T]hese women and men are easy prey for predators . . . .” 38 Id. at 00:32.

Further, laws and policies designed to address sexual violence often focus on the victim–perpetrator binary, thereby limiting possibilities for change that addresses structural harms. This emphasis reifies the ascription that a diagnosis of intellectual or developmental disability is incompatible with exercising the range of choices available and related to one’s sexuality—sex, developing and maintaining intimate relationships, marriage, engaging in sexual pleasure, and having children, to name only a few examples. 39 See, e.g., In re Guardianship of Kennedy, 845 N.W.2d 707, 708, 715 (Iowa 2014) (voicing concern regarding the constitutionality of a guardian’s action to sterilize her twenty-one-year-old son, who was intellectually disabled, without his consent because he was in a relationship with a woman and admitted to having sex but not overturning a lower court’s decision preserving her guardianship of her son); In re Grady, 426 A.2d 467, 486 (N.J. 1981) (finding that if a nineteen-year-old with Down syndrome “can have a richer and more active life only if the risk of pregnancy is permanently eliminated, then sterilization may be in her best interests”). This ascription is reflected through laws that limit the sexual and reproductive choices of people with intellectual and developmental disabilities. 40 See, e.g., infra section I.C and Part III (discussing the range of laws, policies, and state systems that create and sustain the culture of desexualizing disability); see also Powell, Disability Reproductive Justice, supra note 16, at 1867–81 (describing the current landscape of laws and policies that limit the sexual and reproductive choices of people with disabilities).

Scholars are looking beyond the interpersonal narrative of violence to think more critically about its unseen impact, structural causes, and lasting consequences. By applying a broader understanding of violence, scholars such as Professor Erika Wilson are capturing the extent of violence’s hold on maintaining oppressive systems such as racial segregation in the public education system. 41 See, e.g., Erika K. Wilson, White Cities, White Schools, 123 Colum. L. Rev. 1221, 1235–36 (2023) (arguing that adopting a broader definition of racial violence “jettisons the individual-perpetrator-and-intent paradigm that dominates conceptions of racial violence within the law” because the paradigm “limits the scope of what is considered racial violence [and] limits the conception of who is harmed to individuals only, obscuring the [structural] impact”). Similarly, Professor Allegra McLeod argues for the necessity of “expand[ing] our understanding of violence beyond individualized disorder and the immediate scene of interpersonal harm” to stop gun violence. 42 Allegra McLeod, An Abolitionist Critique of Violence, 89 U. Chi. L. Rev. 525, 527 (2022). Professors Stephen Lee and Rabia Belt are further pushing the boundaries of how violence is conceptualized to surface the mounting—but less visible— harms that are a result of incarceration and immigration detention. 43 See Rabia Belt, The Fat Prisoners’ Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future, 110 Geo. L.J., 785, 827–28 (2022) (“The plight of fat incarcerated people, and indeed, incarcerated people in general, is the embodiment of ‘slow violence.’”); Stephen Lee, Family Separation as Slow Death, 119 Colum. L. Rev. 2319, 2326, 2384 (2019) (applying the concept of slow violence as a “useful intervention,” which includes gaining a “better understand[ing] [of] how the law contributes to and normalizes immigrant suffering”). For other scholars who are challenging the normative definition of violence, see, e.g., Jill C. Engle, Sexual Violence, Intangible Harm, and the Promise of Transformative Remedies, 79 Wash. & Lee L. Rev. 1045, 1055–57 (2022) (focusing on a transformative justice approach that addresses the “ongoing, intangible harms” in cases of sexual violence); Alice Ristroph, Criminal Law in the Shadow of Violence, 62 Ala. L. Rev. 571, 573–76 (2011) (discussing the need to think more carefully about what is meant by violence in the undertaking of criminal law reform efforts).

Social science scholars in the last half century have also developed new ways to think about violence and its root harms beyond the interpersonal. 44 See, e.g., Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment 159 (2d ed. 2000) (discussing how, “[b]y making visible the pain [that sexual violence] survivors feel,” scholars of Black feminist literature reframed the normalized misogyny against Black women as violence); Rob Nixon, Slow Violence and the Environmentalism of the Poor 2 (2011) (arguing that there is a need to reframe gradual and delayed destruction as a form of violence); Lauren Berlant, Slow Death (Sovereignty, Obesity, Lateral Agency), 33 Critical Inquiry 754, 754 (2007) (describing the phrase “slow death” as the “physical wearing out of a population and the deterioration of people in that population”); Nancy Whittier, Carceral and Intersectional Feminism in Congress: The Violence Against Women Act, Discourse, and Policy, 30 Gender & Soc’y 791, 793 (2016) (“[A]n intersectional feminist approach emphasizes how social, economic, and political forces interact to shape different experiences and necessary solutions to violence.” (citations omitted)). The structural desexualization of disability framework builds on this literature by shifting attention away from the victim–perpetrator binary of sexual violence that is most often applied to people with intellectual and developmental disabilities. This framework provides for a deeper inquiry into the causes of sexual violence that are not readily visible through a victim–perpetrator binary lens. In doing so, it exposes the extensive and cascading harms that are committed through systems, structures, and the state by the structural desexualization of disability. It further situates what role the state plays in maintaining—and should play in preventing—these harms.

Specifically, this Article examines three disability systems through the structural desexualization of disability framework: guardianship, special education, and the government-funded service system that provides community-based supports to people with intellectual and developmental disabilities. These systems dictate the level of control that is relegated to the sexual and reproductive choices of individuals with intellectual and developmental disabilities. By examining the disability systems “that shape [the] risk and local reality” 45 Barbara Rylko-Bauer & Paul Farmer, Structural Violence, Poverty, and Social Suffering, in The Oxford Handbook of the Social Science of Poverty 47, 57 (David Brady & Linda M. Burton eds., 2016). of sexual victimization, this Article proposes strategies for ameliorating sexual violence and its cascading harms. It further aims to encourage discourse, advocacy, policymaking, and organizing around the breadth of issues that affect sexuality by reframing the victim–perpetrator binary to reposition sexuality as a community integration priority under Title II of the Americans with Disabilities Act (ADA) for people with intellectual and developmental disabilities. 46 See infra section I.B. Community integration encompasses the right of disabled people under Title II of the ADA and its implementing regulations to receive government-funded supports and services in the community to avert unjustified isolation and segregation. Title II of the ADA is a federal statute the prohibits disability-based discrimination by public entities. 42 U.S.C. § 12131(1) (2018). The relevant federal regulation provides that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (2024). Section 504 of the Rehabilitation Act, the precursor to the ADA, includes a parallel regulatory provision. See 28 C.F.R. § 41.51(d) (“The purpose of this part is to implement Executive Order 12250, which requires the Department of Justice to coordinate the implementation of section 504 of the Rehabilitation Act of 1973.”). Section 504 is a federal statute that prohibits discrimination by entities that receive federal funding. Rehabilitation Act of 1973, Pub. L. No. 93-112, § 504, 87 Stat. 355, 394 (codified as amended at 19 U.S.C. § 794 (2018)) (“No otherwise qualified [disabled] individual . . . shall, solely by reason of [their disability], be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”).

The use of an expansive definition of sexuality centers the role of interdependence 47 For discussion of interdependence and disability, see Robyn M. Powell, Care Reimagined: Transforming Law by Embracing Interdependence, 122 Mich. L. Rev. 1185, 1190–91 (2024) (reviewing Jennifer Natalya Fink, All Our Families: Disability Lineage and the Future of Kinship (2022)); Mia Mingus, Access Intimacy, Interdependence, and Disability Justice, Leaving Evidence (Apr. 11, 2017), https://leavingevidence.wordpress.com/2017/04/12/access-intimacy-interdependence-and-disability-justice/ [https://perma.cc/89UT-BDBC] (“Access should be happening in service of our larger goals of building interdependence and embracing need, because this is such a deep part of challenging ableism and the myth of independence.”). in the application of the structural desexualization of disability framework. In applying this framework, the intellectually and developmentally disabled community is not treated as a monolith. There is a “physical, cognitive, and psychological impact” that emerges from the lived experience of disability, which must be recognized and embraced when examining issues of sexuality and disability. 48 Natalie M. Chin, Centering Disability Justice, 71 Syracuse L. Rev. 683, 694 (2021) [hereinafter Chin, Centering Disability Justice] (“[A] critical racism/ableism consciousness framework demands an examination of disability through the prism of its intersections—race, class, sexual orientation, gender, immigrant status, and others—and further recognizes with equal weight the physical, cognitive, and psychological impact of disability on one’s bodymind.”); see also Subini Ancy Annamma, David Connor & Beth Ferri, Dis/ability Critical Race Studies (DisCrit): Theorizing at the Intersections of Race and Dis/ability, 16 Race Ethnicity & Educ. 1, 7–8 (2013) (“DisCrit seeks to understand ways that macrolevel issues of racism and ableism, among other structural discriminatory processes, are enacted in the day-to-day lives of students of color with dis/abilities.”). Disability justice advocate Lydia X.Z. Brown explains, “[T]he experience of disability and being disabled is the result of the interaction of a person’s inherent differences with a society and its attitudes and policies.” 49 Lydia Brown, Disability in an Ableist World, Autistic Hoya (Aug. 12, 2012), https://www.autistichoya.com/2012/08/disability-in-ableist-world.html [https://perma.cc/JC6L-24SP]; see also Doron Dorfman, Disability as Metaphor in American Law, 170 U. Pa. L. Rev. 1757, 1795–97 (2022) (“Disability is an interactive process between the individual, the impairment, the person’s bodymind, and the environment.”). Individuals with intellectual and developmental disabilities need varying degrees of support 50 See Natalie M. Chin, Group Homes as Sex Police and the Role of the Olmstead Integration Mandate, 42 N.Y.U. Rev. L. & Soc. Change 379, 396–97 (2018) [hereinafter Chin, Group Homes as Sex Police] (“The literature . . . often fails to distinguish the unique challenges of individuals with intellectual disabilities in accessing sexual rights.”); see also Martin Lyden, Assessment of Sexual Consent Capacity, 25 Sexuality & Disability 3, 5 (2007) (“At one point in time, an individual with intellectual disabilities may be found incapable of having sexual relations due to knowledge deficits. Subsequently, if that individual receives sufficient training, education, counseling, and exposure to various social situations it may be possible to remedy the knowledge deficits.”). in making informed choices related to sexuality. 51 See, e.g., Lucy J. v. State Dep’t. of Health & Soc. Servs., Off. Of Child.’s Servs., 244 P.3d 1099, 1115 (Alaska 2010) (noting that law and policy requires “family reunification services [to] be provided in a manner that takes a parent’s disability into account”); In re D.D., 19 N.Y.S.3d 867, 870–75 (Sur. Ct. 2015) (denying petitioner guardianship over son with Down syndrome after finding that, with a network of “family, friends, and supportive services,” he could make medical, financial, and other decisions including those around marriage, family, and relationships); Letter from Vanita Gupta, Acting Assistant Att’y Gen., C.R. Div., DOJ, Jocelyn Samuels, Dir., Off. for C.R., HHS, & Susan M. Pezzullo Rhodes, Reg’l Manager, Off. for C.R., Region I, HHS, to Erin Deveney, Interim Comm’r, Dep’t of Child. & Fams., Exec. Off. of Health and Hum. Servs., Commonwealth of Mass. (Jan. 29, 2015), https://www.hhs.gov/sites/default/files/mass_lof.pdf [https://perma.cc/Y3SQ-RQ38] (finding that a state agency erroneously assumed a mother couldn’t safely parent her newborn daughter because of the mother’s disability). Supports alone, without confronting the systems and structures that maintain the desexualization of disability, will not achieve change.

The structural desexualization of disability framework does not jettison the victim–perpetrator binary. Rather, it suggests that a broader structural framing that examines the roots of sexual violence on the intellectually and developmentally disabled community is necessary. Any amelioration efforts that address sexual violence against people with intellectual and developmental disabilities must first confront the structures that maintain this violence—and identify the complicit role of government systems in exacerbating it. As expressed by political theorist Mathias Thaler, “how we conceptualize violence affects what we do to contain and mitigate it.” 52 Mathias Thaler, Naming Violence: A Critical Theory of Genocide, Torture, and Terrorism 1 (2018); see also Lee, Violence, supra note 5, at 6 (“An updated definition [of violence] should reflect this urgency so that it can capture conceptually significant dimensions of violence to guide our thinking, research, and action.”); Longmore Lecture: Context, Clarity & Grounding, Talila A. Lewis Blog (Mar. 5, 2019), https://www.talilalewis.com/blog/archives/03-2019 [https://perma.cc/3UU9-RD6Y] (recognizing that violence is a cause and consequence of disability and arguing that “[v]iolence should be understood broadly” to include the “[d]eprivation of language, food, water, shelter, education, health, economic security, etc.”).

Part I of this Article examines the history and role of the law in desexualizing disability. It explores how the structural desexualization of disability is an unintended consequence of the advocacy movement for community integration under Title II of the ADA, which prohibits disability-based discrimination by state and local governments. Part II discusses the inadequacy of the victim–perpetrator binary of sexual violence. It then introduces the structural desexualization of disability framework. Part III applies this framework to three central disability systems that people with intellectual and developmental disabilities must navigate: guardianship, special education, and the government-funded system that provides community-based supports and services. Part IV concludes by offering strategies to reconceptualize sexuality as a community integration priority through state and other interventions.