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Learning Center Experience
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.
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).
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).
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 &
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.
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).
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).
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).
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).
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).
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.
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).
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).
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).
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
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.,
Cohen, J., Dickerson, T., & Forbes,
J. (2014). A legal review of autism, a syndrome rapidly gaining wide attention
within our society. Albany L. Rev.,
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).
v. Sokaluk  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,
(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
 WASC 127.
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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