• Autism_and_the_prison_system

    A Call to Legislative Awakening

    By Monique Chiacchia, JD, MSCJ

    Legal systems punish offenders who demonstrate both a criminal act (actus reus) and a criminal mindset (mens rea). The only exception relates to statutory offenses, where commission of the crime alone establishes culpability by legislative command. When an offender suffers from a condition of the mind that affects his/her ability to form complete criminal intent, defense counsel may argue that because of a diminished capacity, the offender should be either acquitted or receive a reduced charge or sentence. Examples of conditions that historically have served as the basis for diminished capacity are mental illness not rising to the level of legal insanity, mental impairment (such as resulting from alcohol or drug use), and battered women’s syndrome. 

    Today, courts are dealing with instances of Autism Spectrum Disorder (ASD) as it relates to criminal intent but approaches vary, as there is no uniform or legislative pronouncement on how this disorder relates to mens rea. This article will discuss ASD generally and will review approaches to and concerns with processing ASD defendants.

    Autism Generally  

    The DSM-V defines ASD as “a group of pervasive developmental disorders characterized by impairments in social communication, social interaction and social imagination” (APA 2013). Autism consists of a grouping of complex neurodevelopment symptoms signifying brain disorders that are unique to the individual (Cohen, Dickerson & Forbes, 2014). These symptoms can include difficulty socializing and communicating, and engaging in prohibited and repetitive conduct (Cohen, Dickerson & Forbes, 2014). Many individuals with ASD excel in certain disciplines and have cognitive and mental health difficulties at the same time (Cohen, Dickerson & Forbes, 2014). ASD transcends gender, race, and socioeconomic status. The Autism Society reports that more than 3.5 million Americans have an ASD (NCSL, 2016). Additionally, the Center for Disease Control and Prevention estimate one in 68 children in our country has an ASD, with the disorder occurring five times more often in boys than in girls (Cohen, Dickerson & Forbes, 2014).

    ASD and the Criminal Justice System 

    Researchers agree that most individuals with high functioning ASD are law abiding citizens who are more likely to be victims of crimes than commit crimes, but they are still seven times more likely to intersect with the criminal justice system than individuals without ASD (Berryessa, 2014). ASD individuals can exhibit behaviors that expose them to criminal charges and victimization because of perceived antisocial behavior, inability to pick up social cues, and obstacles with both verbal and nonverbal messages (Cohen, Dickerson & Forbes, 2014). Howlin (2004) suggests that four factors predispose ASD individuals to crime commission, including social naaiveté, aggression triggered by disrupted routine, aggression due to social misunderstanding, and obsessive behavior with a lack of understanding of the implications of that behavior. Additionally, lack of empathy, inability to consistently control emotions, and issues associated with “moral reasoning” can increase an ASD individual’s exposure to the criminal justice system (King & Murphy, 2014). Furthermore, it is important to note that many ASD individuals have high intelligence levels, which can result in the inability to invoke legal insanity as a defense in most states (King & Murphy, 2014), while others lack the emotional capacity to determine “right” from “wrong” and might therefore qualify for the insanity defense (Woodbury-Smith & Dein, 2014).

    Lack of research about and flawed methodology of research regarding ASD and criminal justice have resulted in significant variation in our understanding of how prevalent crime commission is by those who have this disorder. One study conducted by King & Murphy (2014) suggests that there are a wide variety of factors that contribute to the difficulty of making generalizations and predictions, including how studies count “offending.”  Some researchers limit this to convictions only whereas others focus on all contacts with the criminal justice system and even self-reports of criminal activities (King & Murphy, 2014). In addition, researchers may or may not differentiate between people with Asperger syndrome and others diagnosed with ASD, and bias and flawed methodologies have skewed accurate results (King & Murphy, 2014). These complications make it hard to draw conclusions about what crimes people with ASD may be more likely to commit because of their unique characteristics, and that in turn makes it difficult to offer preventative support for at risk ASD individuals (King & Murphy, 2014).

    What we can glean from the literature about those with ASD who commit crimes is that those individuals exhibited “inappropriate attempts at forming relationships, threats to kill or otherwise do harm in the context of perceived wrongdoings, and illegal behaviors that occur in fulfillment of a special interest” (Woodbury-Smith & Dein, 2014). Woodbury-Smith & Dein (2014) emphasize, however, that “the prevalence of unlawful behavior is not particularly high” for those with ASD.       

    Criminal Intent, Diminished Capacity, and ASD 

    There are some instances when evidence shows that a person has not formed the criminal intent necessary to satisfy one of the basic elements of a crime—the mens rea. In yet other instances, a person may have some form of criminal intent, but it is reduced by some other factor (Hall, 2015). Those factors include mental illness, low intelligence, excessive alcohol or drug use, and medical conditions like battered women’s syndrome. In those cases where an actor has no ability to form criminal intent, s/he cannot be convicted of a crime (Hall, 2015). In instances where there is some criminal intent but not full intent, this is referred to as diminished capacity (Hall, 2015).

    Whether a person with ASD has the capacity to form the mens rea to commit a crime is a complex issue and should be afforded the same analysis offered to those suffering from mental illness and psychopathy. “Unlike psychopathy, however, ASD has nosological status and… is associated with significant socio-emotional impairments that may, arguably, affect the ability to form intent” (Woodbury-Smith & Dein, 2014). For example, stalking—a crime in all 50 states that occurs when one harasses another by repetitively following someone often to harm or scare them—requires proof by the state of the defendant’s intent to annoy and possibly harm the individual. However, a person with ASD may unintentionally exhibit stalking conduct without intent to harass or harm, particularly due to repetition, and without being cognizant that others may interpret their behavior as stalking (Post et al., 2014).

    Police and other officials may not immediately recognize some people as having ASD because they are “high-functioning,” and this can create obstacles for many—particularly those who were not diagnosed prior to commission of the crime or do not volunteer their diagnosis to police upon arrest (Woodbury-Smith & Dein, 2014).  The unfortunate reality is that those with ASD may come across as having acted willfully and intentionally during interrogation simply because of the individual’s reaction to the interrogation, change in routine, and stress (Woodbury-Smith & Dein, 2014). Poor problem solving, acquiescence, and susceptibility to coercive police tactics can further muddy true criminal intent in those with ASD (Woodbury-Smith & Dein, 2014). “[A]n accused person needs to integrate themselves into their recall of events. This may place demands on cognitive capacities, such as theory of mind, known to be generally impaired among individuals with ASD, and their ability to recount events may be thus compromised” (Woodbury-Smith & Dein, 2014).

    Berryessa (2014) argues that most people with high-functioning ASD who engage in crimes do so as a part of the symptoms of their disorders, and in particular those related to lack of impulse and motor control, fixation on what they are interested in, cognitive deficits, and lack of social skills including how their actions affect others. The crimes committed by those with ASD can sometimes appear bizarre, and ASD defendants may not fully comprehend what they have done wrong or even that they will be prosecuted for their behavior (Berryessa, 2014). Because of this, there is serious concern over whether even high-functioning ASD defendants can form the requisite criminal intent and therefore whether they should be culpable for their actions (Freckelton, 2013).

    Judicial Response  

    Although most with an ASD will not commit crimes, courts must understand how to handle requests to admit expert testimony in those cases where a criminal defendant shows signs and symptoms (or a diagnosis) of ASD. Because ASD often impacts not only the individual’s reasoning process in crime commission but also one’s ability to fully assist counsel in his/her offense in preparing a defense or navigating through the plea bargaining process, courts should not shy away from at least hearing testimony on the subject despite the fact that ASD symptoms (such as aggression) may resemble conduct of offenders not diagnosed with ASD (King & Murphy, 2014). As one advocate maintains, “[a] diagnosis of an autism spectrum disorder is as relevant to police and legal proceedings as a diagnosis of mental retardation or mental illness would be, no matter how bright, high-functioning, and/or verbal the individual may be” (Doyle, 2014).

    Further complicating this is the fact that those diagnosed with ASD may respond in an inconsistent manner based on external factors such as emotions, familiarity with those around him/her, sensory pressures, and the situation at hand (Cohen, Dickerson & Forbes, 2014). However, courts are not uniformly receptive to expert testimony about ASD, special challenges that confront such individuals, and whether the disorder warrants the use of diminished capacity to relieve the actor of culpability or reduce the charge or sentence (King & Murphy, 2014). In short, it can be difficult to differentiate between conduct that is consistent with and characteristic ASD and conduct that is typical of an offender (Cohen, Dickerson & Forbes, 2014). What is clear from the literature is that courts should in the very least consider expert evidence regarding a defendant’s ASD diagnosis and how that related to the intent aspect of the crime.

    For example, in State v. Burr, 2013 N.J. Super. Unpub. LEXIS 1130, at *1 (N.J. Super. Ct. App. Div. May 13, 2013), defendant was charged with second-degree aggravated assault and second-degree endangering the welfare of a child. He was convicted of second-degree aggravated assault and third-degree endangering a minor (State v. Burr, 2008). On appeal, the New Jersey Superior Court reversed the decision and remanded the case for a new trial on the basis that the trial court erred when it excluded defendant’s request to present expert testimony regarding his diagnosis with Asperger’s Disorder (State v. Burr, 2013).

    In State of Western Australia v. Mack (2012), an autistic man was charged with murdering his mother. The trial judge gave little attention to the effect that his unusual and disruptive behavior had before the jury (State of Western Australia v. Mack, 2012). On appeal the court ruled that because jurors could have drawn negative impressions from the behavior, the case should have been tried before a judge alone. However, not all courts are sensitive to the use of expert testimony and mental health professionals in the criminal justice system. For example, in DPP v. HPW (2011), a man with ASD was accused of sexually molesting his 11 year-old daughter. The appellate court struck down the argument that the fact that the defendant misread his daughter’s sexual cues was caused by his ASD (DPP v. HPW, 2011).

    Judicial consideration for ASD, as either eliminating criminal intent or as a mitigating factor for charge or sentence reduction, is improving. In her research, Berryessa (2014) found that “judges perceived that high-functioning ASD offenders view the word in a unique way, much of their behavior is not directly under their control, and they are inherently different than other offenders and should be treated as such.” However, many judges interviewed also admitted that their lack of knowledge affected their ability to make independent determinations on ASD, and instead relied upon expert assistance to effect justice (Berryessa, 2014).

    Policy Considerations and Recommendations 

    As Woodbury-Smith & Dein (2014) suggest, an integrated approach between mental health and criminal justice professionals is a must in order to handle the unique issues associated with those with ASD who offend. Their suggestions of including a forensic mental health specialist in the criminal court system or diverting ASD defendants entirely from the criminal justice system highlights the complexity and individual nature of each person’s case (Woodbury-Smith & Dein, 2014). While acknowledging that there will be some with ASD who are correctly prosecuted, they note that during this process courts should take into consideration the unique mental health issues the defendant suffered from due to ASD at the time of the offense (Woodbury-Smith & Dein, 2014). “[T]here is an increasing requirement for mental health professionals to assist the courts to make decisions that are authentically informed by expert insights in relation to the needs, subtleties and complexities of ASD insofar as the disorder is relevant to curial proceedings” (Freckelton, I. (2013). One recommendation for those processed through the criminal justice system is the creation of a “therapeutic” prison that offers mental health treatment unique to the individual. Their suggestion is for an ASD specialist wing in the center of prisons to help men incarcerated with ASD receive treatment and counseling (Woodbury-Smith & Dein, 2014). Fundamental to helping courts make proper determinations is having expert advice from those who are familiar with the disorder and how it is relevant in the criminal justice environment (Freckelton, 2013).

    Public policy demands a legislative response to help courts handle unique cases of criminal defendants with ASD, where statutory guidelines address both standards and policy for inclusion of mental health professionals in the criminal justice system for greater understanding and support. Such legislation should provide that as in any case where mental impairment is in issue, the court must consider the unique factors that affect the ASD defendant and whether those factors amounted to an impairment or disability impacting culpability. Without unifying legislation, courts will continue to handle cases with little to no guidance despite evidence of how different it is for those with ASD to acquire and process information, engage in abstract reasoning, understand social cues, reason, and communicate with others (Freckelton, 2013).


    American Psychiatric Association (APA). (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Washington, DC: APA. 

    Berryessa, C. (2014). Judiciary views on criminal behaviour and intention of offenders with high-functioning autism. J. Intellectual Disab. and Offend. Behav., 5:2, 97-106. 

    Cohen, J., Dickerson, T., & Forbes, J. (2014). A legal review of autism, a syndrome rapidly gaining wide attention within our society. Albany L. Rev., 77:2, 389-423. 

    Doyle, B. (2014). And justice for all: Unless you have autism: What the legal system needs to know about people with Autism Spectrum Disorders 1-2, http://www.autismspeaks.org/docs/family_services_docs/LegalSystem.pdf (last visited Mar. 15, 2016). 

    DPP v. Sokaluk [2013] VSCA 48.

    Freckelton, I. (2014). Autism Spectrum Disorder: Forensic issues and challenges for mental health professionals and courts. J. Applied Res. & Intellectual Disab. 26, 420-434. 

    Hall, D. (2015). Criminal law and procedure. 7th ed. Upper Saddle River: Cengage.

    Howlin, P. (2004). Autism: Preparing for adulthood (2nd ed.). London: Routledge.

    King, C. & Murphy, G. (2014). A systematic review of people with Autism Spectrum Disorder and the criminal justice system. J. Autism Dev. Disord., 44, 2717-2733. 

    (Feb. 2016). National Conference of State Legislatures. Last retrieved from http://www.ncsl.org/research/health/autism-policy-issues-overview.aspx

    Post, M. et al. (2014). Understanding stalking behaviors by individuals with Autism Spectrum Disorders and recommended prevention strategies for school settings. J. Autism Dev. Disord., 44, 2698-2706. 

    State v. Burr, No. A-2671-10T3, 2013 N.J. Super. Unpub. LEXIS 1130, at *1 (N.J. Super. Ct. App. Div. May 13, 2013); State v. Burr, 921 A.2d 1135, 1137 (N.J. Super. Ct. App. Div. 2007), aff‘d, 948 A.2d 627 (N.J. 2008).  

    State of Western Australia v. Mack [2012] WASC 127.

    Woodbury-Smith, M. & Dein, K. (2014). Autism Spectrum Disorder (ASD) and unlawful behaviour: Where do we go from here?, J. Autism Dev. Disord. 44, 2734-2741. 

    Monique Chiacchia, JD, MSCJ, is a faculty member at Kaplan University. The views expressed in this article are solely those of the author and do not represent the view of Kaplan University. The University cannot guarantee employment or career advancement. 

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