Why We Oppose SB 258
Behind the mask of Sen. Aisha Wahab’s “Justice for Disabled Spouses” bill, strongly opposed by actual disabled spouses and their allies
SB 258 is a discriminatory bill that takes a shameful step backward for the rights and dignity of people with intellectual and developmental disabilities (I/DD) in California. It is the latest attempt from Stanford Professor Michele Dauber, working now through Sen. Aisha Wahab, to get the classification for spousal rape off the books in California by any means necessary. While we applaud this goal in isolation, the "means necessary" in this case is doing incredible harm to disabled people. Under the banner of protecting survivors, this bill removes the one last sliver of the law for people with disabilities to avoid criminalization for engaging in consensual relationships. SB 258 will do far too much collateral damage for us to accept and its authors are attempting to force this bill through without addressing the cries of protest from the community they're pretending to protect.
By suggesting that individuals with intellectual and developmental disabilities are blanketly incapable of giving consent, this bill perpetuates discrimination and undermines their humanity. People with IDD deserve the same rights as anyone else to express their consent in relationships, to bodily autonomy, and to love. Even worse, 258 echoes awfully a bleak history of state control over disabled people's bodies and lives.
History of Policing Disabled Bodies
Between the 1800s and the 1970s, state laws and institutions labeled people with disabilities, especially those with I/DD, as incapable of meaningful relationships. California criminalized any expression of intimacy, placed them in state hospitals, and forcibly sterilized them. These laws and attitudes were rooted in eugenics and control.
SB 258 echoes and modernizes that legacy. It attempts to undo a carefully balanced 1996 law that recognized the fundamental rights of people with disabilities by creating a narrow marriage exemption to California’s sexual offense statutes. This exemption was created because disability advocates, legislators, and legal experts of the time understood that marriage, love and sex, when consensual, is not abuse. Following closely the passage of the Americans with Disabilities Act, there was an understanding that denying disabled people the legal ability to have consensual sex within their partnerships was a human rights violation.
Sadly, as exemplified in California with SB 258, that understanding appears to be eroding. This bill torches the hard-won progress of history in eliminating the last legal protection for people with I/DD to express their sexuality. It replaces that safe harbor from family and governmental interference with a system that assumes people with I/DD cannot consent to sexual activities, even to their own spouses. It exposes adults living with I/DD to unrestricted criminal prosecution and entanglement with law enforcement, the court system, and incarceration, simply for having consensual sex lives.
The Bill is Rooted in Stereotypes, Not Solutions
At its core, SB 258 quietly assumes that disability equals incapacity to consent to sexual relationships. Upholding and reinforcing law from 1897, it says that if one spouse has a mental or developmental disability then that renders them unable to give legal consent. It creates more situations where sexual relationships will be wrongfully prosecuted as rape. This bill perpetuates harmful stereotypes that undermine the autonomy and dignity of individuals with intellectual and developmental disabilities. By framing them as perpetual children, it denies their capacity for agency and self-determination. Such ableist notions are not only outdated but also dangerous, as they strip away the fundamental rights of individuals to make informed choices about their own bodies and relationships. We must reject this narrative and affirm the rights of disabled individuals to be seen as capable, empowered adults.
Too often, we’ve watched people be charged with sex crimes simply for having relationships that family members or service providers don’t approve of. In most of these cases, there is no violence, coercion, or exploitation, just two people with disabilities navigating intimacy, often without adequate education or support.
California’s criminal legal system already disproportionately imprisons people with disabilities and is ill equipped to understand or fairly assess disability. Courts routinely deny that people with I/DD can consent to sex, even when they have clearly expressed a desire to do so. In many cases, people are deemed legally incapable to consent despite prior sexual experience, marriage, or express verbal affirmations. Effectively current law allows people with I/DD to be prosecuted simply for being in relationships, then to be sent to state prison and/or labeled as sex offenders for life. This bill and its supporters suggest that giving DAs more power and ease in prosecuting people with I/DD will not be harmful, that they can be trusted not to wrongfully convict disabled people in vulnerable situations. Sadly, based on all of the data and the clear record, we must strongly disagree.
Nothing About Us Without Us
It has been disturbing to hear Sen. Wahab frame SB 258 as a disability rights bill, when in reality it throws disabled people utterly under the bus to achieve its narrow goal. SB 258 was drafted and introduced without input from self-advocates from the I/DD community and those who will be most impacted. Willfully ignoring this input the author continues to push forward a bill that reflects outdated paternalism, will create gross material harm, and moves in violation of the disability principle of “nothing about us, without us.”
If lawmakers truly want to support survivors and protect people with disabilities, SB 258 is the wrong bill. We do not need more laws that presume incapacity of disabled people. We do not need more criminal laws that punish disabled people’s existence and expression of human rights. We need policies that recognize and affirm the sexual rights of people with I/DD and provide more investment in supportive decision-making and accessible sexual health education, policies that take as their mission defining and supporting capacity to consent, not eradicating it. Throughout SB 258’s progress through the state legislature, DRC has chosen to stand in total opposition to this bill, we believe it is poison from its core and have chosen not to pursue the “harm reduction” tactic of negotiating for amendments on something that is so nakedly and broadly harmful. This is a bill that simply modernizes paternalism, state control over disabled bodies, and rank eugenics by wearing a mask of feminism. We oppose SB 258 and if it is successfully signed into law, we will continue to oppose it. This time, we will not be silenced.
Megan Buckles is a Public Policy Attorney at Disability Rights California (DRC) Her work focuses on public safety and accessibility issues.
Kecia Weller is a Human Rights Activist and Woman with Lived Experience of I/DD.
The public response, as reflected in various discussions and articles, suggests that there is fear that the law could be misapplied or misunderstood, leading to unintended consequences in intimate relationships. Some people view this as a potential overreach that could criminalize consensual marital relations under certain circumstances.
Can someone maybe help me understand how this bill would do what you say it would do? I'm not an attorney but the relevant paragraph in the legislation seems to make it pretty clear that it applies only to cases in which a person was rendered incapable of giving consent by their disability. Am I misunderstanding something?