Law Strips Pejorative Terms for Mental Incapacity From Statutes

David Gialanella

New Jersey Law Journal

2013-08-13 01:48:54.0

Outdated and sometimes offensive terms once commonly used to describe mental capacity have been stricken from a host of New Jersey statutes.

Gov. Chris Christie signed a law on Aug. 7 that removed terms such as "lunatic," "insane," "unsound mind" and "incompetent," replacing them in most cases with references to decision-making capacity.

The 102-page legislation, A-3357/S-2224, was recommended in a September 2011 report by the New Jersey Law Revision Commission.

It modifies or repeals at least 134 statutory and regulatory provisions governing a range of issues.

Some examples:

• In a statute governing juvenile delinquency (N.J.S.A. 2A:4A-39), references to "competent" or "competence" were replaced with references to a juvenile who "is found to have mental capacity" or "found to lack mental capacity" to waive rights.

• In statutes governing estate administration (N.J.S.A. 2A:16-55) and civil actions (N.J.S.A. 2A:81-2), references to "lunatic" were replaced with references to a "person who is mentally incapacitated."

• In a statute governing workers' compensation (N.J.S.A. 34:15-27), reference to a "person who shall become insane" was replaced with reference to a "person who shall become mentally incapacitated."

• In a statute governing marriages and civil unions entered into by minors (N.J.S.A. 37:1-6), reference to a parent or guardian "of unsound mind" was replaced with reference to a parent or guardian "who is mentally incapacitated."

Many changes use "person-first" language, which refers to a "person with a developmental disability" rather than a "developmentally disabled person" to "emphasize a person's value, individuality, dignity, and capabilities," according to the accompanying legislative statement.

In addition, language in several provisions was modified to be gender-neutral, and references to now-nonexistent agencies were removed.

"Although it might not have been an issue that was in the forefront for legislators ... once it was brought to their attention, there was some real receptivity," says Laura Tharney, the commission's executive director.

This was the second round of language modifications related to mental health and disability issues pushed through in the past three years.

In response to a 2007 constitutional amendment removed the phrase "idiot or insane" from art. II, sect. 1, para. 6, which covers voting rights, the commission began parsing state statutes.

In 2008, it recommended a series of changes that would remove all references to "mental retardation," "mentally retarded," "idiot" and "feebleminded." The commission urged replacing them with references to developmental or intellectual disabilities.

Legislation aimed at making those changes, A-2812/S-1982, passed the Legislature and was signed in August 2010.

But there were other terms embedded in the statutes, prompting another examination, she says.

The Office of Legislative Services compiled a list of remaining pejorative terms, particularly "lunatic," "insane," "unsound mind," "incompetent" and their derivations.

In its September 2011 report, the commission recommended replacing those terms with "mentally incapacitated," defining it as "lacking decision making capacity as impaired by reason of mental illness or intellectual disability."

That definition was incorporated into A-3357/S-2224 to bring differing statutory definitions into line.

"Because there were a wide range of terms that were examined, you have to be very careful" that terms are being replaced with others that make sense in context, Tharney says.

The legislation was introduced in October 2012. It passed the Assembly in a 76-0 vote on Dec. 3 and the Senate in a 40-0 vote on June 20.

Assemblywoman Valerie Vainieri-Huttle, D-Bergen, a lead sponsor of both bills, says: "I quite frankly was never really aware of the words that were being used."

Some of the terms, though outdated, remained in use in legal contexts, Vainieri-Huttle says. "That's why this law is very meaningful."

Several advocacy groups, including Disability Rights New Jersey and Mental Health Association in New Jersey Inc., strongly promoted the legislation, she adds.