Disability Rights California (DRC) has been forceful and clear in our opposition to SB 258, Sen. Wahab’s “Justice for Disabled Spouses Bill.” Senator Wahab introduced a bill calling for justice for disabled people without working with any of the leading disability advocacy organizations in our State. You can find the comprehensive reasoning on our opposition here.

Last week, after we repeatedly encouraged them to stop negotiating with Wahab and join us in opposing SB 258, a coalition led by our colleagues at the Disability Rights Education and Defense Fund (DREDF) concluded a negotiation on amendments to SB 258 and celebrated this negotiation as a victory in a document entitled “Promoting Sexual Autonomy of Disabled People.”

Notwithstanding these developments, we remain disappointed in the legislative process surrounding this bill. We believe that Sen. Wahab and the bill’s sponsors have not acted in good faith throughout this process and have actively ignored, stonewalled, and disrespected actual disability leaders, particularly people with intellectual and developmental disabilities (I/DD). The amendment process should not have been conducted in such a manner.

We have been clear about the I/DD advocates and leaders that we have been in constant communication with about this bill, and we have centered and put forward their thoughts, words, and specific objections in our opposition campaign. To our knowledge, Sen. Wahab’s office has never chosen to engage in any meaningful way with these communities. We continue to call for meaningful engagement with people with I/DD before any bill that claims to protect their sexual autonomy is signed into law.

While the amendments negotiated in this long process reflect important legal change, we remain concerned. The amendments overturn an outdated and ableist legal standard and now establish a presumption of capacity to consent. The amendments create a new definition of capacity that does not allow a subjective assessment of what “consequences” of sexual activity are as a means to claim people with disabilities do not understand sex. There is now a requirement to consider the disabled person’s needs for support and accommodations. This allows evidence of supported decision making to come into the case. However, we know the criminal legal system has a long track record of ableism and discriminatory operations, and we believe there is a strong likelihood that the gains on support and accommodations will not be consistently enforced or applied.

To be more effective, the amendments should make it clear the bill overturns the outdated legal standard. The bill should make clear there is a presumption of capacity and it should not be written in a double negative. In addition, the definition of capacity should be applied to all places in the Penal Code where this language is used. Lastly, this is not a bill about sexual health, protection or sexual autonomy for people with disabilities, but we should work towards those goals.

SB 258 has always been a prosecutor and law enforcement driven bill. Even with these amendments, it continues to be championed by District Attorneys and Sheriff’s Departments. Our mandate is to protect and advocate for people with disabilities, whether they are a victim or defendant, and we remain concerned about the risks this bill poses when shaped and implemented through a prosecutorial lens.

We can understand the argument that engaging on SB 258 was in the interest of “harm reduction” but disagree with the strategy. We are deeply concerned with a legislative process that upholds power dynamics, requires negotiating with bad actors, and excludes community accountability, particularly from the groups that are most affected by the bill. We are disappointed that other organizations in our space chose a different path by cutting a deal, which we believe lends legitimacy to a process that has excluded key voices and lacked transparency.

Our opposition strategy has flowed from an understanding and frustration that disabled people in California are routinely ignored by our elected officials at every level of government. As this bill has sailed through multiple committees with unanimous votes over our strong opposition, we have chosen to maintain a clear and principled stance rather than negotiate with this bill’s authors and sponsors, who have proven themselves bad actors. Instead, we have sought to amplify the voices of actual leaders with I/DD to build their power and voice their concerns.

We would support a bill that actually centered disabled people’s voices and supported their sexual autonomy.  SB 258 is not it. We believe we would have achieved more if the disability community have remained united in opposition to the bill, and we believe the only reason Wahab came to the table with DREDF was because of our strong public opposition to the bill she authored.  We worry that the change reflected in the amended bill may be used to deny the need for comprehensive reforms for sexual autonomy equality in the future.

Moving forward, DRC encourages all of our long-term allies in the disability movement to learn from this effort, to do better by centering the voices of the people most affected by the policies we are crafting, and to not be afraid to walk away from the negotiating table when the people on the other side have demonstrated bad faith or disrespect.

Media Contact

Sam Mickens
Director of Communications
(646) 945-0918
Sam.Mickens@disabilityrightsca.org

Disability Rights California (DRC) – Is the agency designated under federal law to protect and advocate for the rights of Californians with disabilities. The mission of DRC is to defend, advance, and strengthen the rights and opportunities of people with disabilities. For more information visit: https://www.disabilityrightsca.org.