We’ve Looked at TJ from Both Sides Now: Perspectives of the Professor & the Practitioner

In this blog the Professor – Michael L. Perlin, Professor Emeritus of Law, New York Law School – and the Practitioner – Alison J. Lynch, Staff Attorney, Disability Rights New York – discuss how Therapeutic Jurisprudence has informed their work, individually and in collaboration…

Michael L. Perlin (MLP): Therapeutic Jurisprudence (TJ) has been part of my teaching, my writing and my practice since 1990, when I read David Wexler and Bruce Winick’s first works.  I put on the first TJ conference at any US based-law school at New York Law School in 1993 (participants included David, Bruce, Murray Levine, Bob Sadoff, Joel Dvoskin, Debbie Dorfman, and others whose names are escaping me; all articles are available in the New York Law School Journal of Human Rights (vol. 10, 1993)).  And for the past 20 years+, I’ve been incorporating TJ into my scholarship in many areas of the substantive law (mental disability law, criminal law and procedure, correctional law, tort law, and others).  But none more than on the question of the relationship between sexuality and disability, especially in cases involving individuals institutionalized because of mental disability.

I began writing about this in 1994, and have returned to the topic frequently since, looking at the issues in the context of anti-discrimination law, forensic facilities, and comparative law. I even wrote a “meta” article on audience reactions to my live presentations (often expressing anger and shock at the suggestion that persons with disabilities had sexual feelings and sexual rights).  More recently, AJL and I have embarked on a new project that examines these issues more closely, from multiple perspectives, including international human rights law, the meaning of competency, and (in a book-length work in progress) how attitudes towards this subject often are eerily like medieval religious attitudes towards sexuality.  I’ve written a lot in my career, but nothing I’ve ever focused on has struck as many raw nerves as does this topic, and that, I think, makes it a perfect TJ case study.

Alison J. Lynch (AJL): Having been introduced to the concept of TJ fairly early in my legal career, in the summer of my 1L year, I have attempted to integrate its teachings into not only my legal education but now, my legal practice.  In my “day job”, working for New York’s Protection & Advocacy system, my clients all have some form of mental disability and frequently have faced bias and discrimination due to it.  TJ has been an ideal addition to my own still-evolving practice style, especially in dealing with overlooked and misunderstood areas of mental disability law.  One of these areas, which MLP described, is how various entities regulate consensual sexual activity for their clients. Another overlooked area is that of forensic mental health issues.  MLP and I both feel strongly that not enough attention is paid to this population, to their extreme detriment.  Patients in forensic facilities face dual discrimination for both mental disability and involvement in the criminal justice system, and adequate, effective representation for this group needs to take that into account when dealing with the unique issues faced by the forensic population.  Additionally, as I have continued to recognize how significant TJ’s impact can be, MLP and I have expanded our use of TJ principles into other disciplines, such as criminology and neuroscience.  We recently wrote and presented a paper about the need for criminologists and attorneys to work together in light of ongoing developments in scientific evidence, specifically linking this need to both TJ concepts and the population of forensic patients. As we engage in further scholarship, our hope is to continue broadening the use and impact of TJ throughout a variety of disciplines, promoting a more client-centered system of representation for underserved populations.

Co-authored works:

“Love is Just a Four-Letter Word”: Sexuality, International Human Rights and Therapeutic Jurisprudence, 1 Canada J. Compar. & Contemp. L. 8 (2015).

“All His Sexless Patients”: Persons with Mental Disabilities and the Competence to Have Sex, 89 Wash. L. Rev. 257 (2014).

Sexuality, Disability and the Law: Beyond the Last Frontier? (Palgrave Macmillan) (2015) (forthcoming)

‘Toiling in the Danger and in the Morals of Despair’: Risk, Security, Danger, the Constitution, and the Clinician’s Dilemma, 26 Stanford L. & Pol’y Rev. – (2015) (forthcoming)

How Teaching about Therapeutic Jurisprudence Can Be a Tool of Social Justice, and Lead Law Students to Personally and Socially Rewarding Careers:  Sexuality and Disability as a Case Example, — Nevada L.J. — (2015) (forthcoming)

“In the Wasteland of Your Mind”: Criminology, Scientific Discoveries and the Criminal Process (manuscript awaiting submission)

Contact our guest bloggers:

Email: Michael Perlin

Email: Alison Lynch