Lighting Up Criminal Law in Blue: Autism, Excuse, and the Guilty Mind

  • By:Ron Payne
Ed. Note: This article was authored by Kimberly J. Byrd, Esq., who is a former partner of Payne Law, PLLC and mother of four wonderful children. She can be reached at kbyrd.jdwfu2013@gmail.com

People with autism are generally law abiding and unlikely to ever commit any violent crime. Clinical Neuropsychiatry In fact, because they are generally taught to be compliant from a young age and have difficulty interpreting social cues and the intentions of others, they are more likely than neurotypical people to fall victim “to a range of crimes from fraud to theft to violent crimes.” A Legal Review of Autism Research suggests the prevalence of aggression related to Asperger’s syndrome is as low as 2.7%; although, scientists note that such associated aggression may be the result of “comorbid psychiatric diagnoses, rather than the [autism] per se.” Clinical Neuropsychiatry

Criminal acts attributed to autistic perpetrators “include physical and sexual assaults, arson, harassing phone calls, theft, attempted murder, murder and possibly even serial murders.” Clinical Neuropsychiatry When confronted with an autistic perpetrator, law enforcement should take measures “to avoid misinterpreting behaviors and characteristics typical of those with autism as evidence of guilt, indifference, or lack of remorse. Indeed, the willingness of an [autistic] individual to “cooperate” can lead to allegations of entrapment.” A Legal Review of Autism  Autistic perpetrators tend to immediately confess to police and are likely to lack any previous criminal record. Clinical Neuropsychiatry

Studies of convicted autistic perpetrators demonstrate common tendencies among them, including “maintaining of idiosyncratic interests, lack of empathy, naïve one-sided social interaction, limited capacity to form friendships, pedantic and repetitious speech, clumsy movements and odd postures. . . . deficits in recognizing humor, irony or sarcasm, as well as the use of gestures, personal space and topic selection.” Clinical Neuropsychiatry Autistic perpetrators tend to lead lives of physical and psychological isolation – a predisposing factor indicating future maladaptive, even criminal, behavior – resulting in the “development of intrusive thoughts, daydreams, and fantasies.” Clinical Neuropsychiatry Other traits found common among autistic perpetrators of violent crimes include “extreme irritability and frustration when confronted with physical touch, fascination with and collection of guns and swords reflecting stereotyped interests, as well as odd explanations and imaginations of what injuries could result in and difficulties in recognizing facial expressions and verbal cues.” Clinical Neuropsychiatry Some autistic perpetrators were found to exhibit “deficient internal coherence” in which they compartmentalized their thoughts such that, in their minds, events seemed to occur in different rooms and “one event seem[ed] to occur “in a separate room, completely dissociated from other rooms.”” Clinical Neuropsychiatry

An accused criminal offender will not necessarily be exempted from prosecution or punishment by reason of autism. In the course of prosecuting the accused autistic offender, “the nature and severity of the person’s impairment are compared to legal standards for each particular rule (e.g., competency, capacity). As a general rule, the more severe the impairment, the more likely that an accused with autism will be able to successfully raise an autism-related defense.” Autism in the US  Even if the accused autistic offender is very high-functioning and possesses above average intelligence, the severity of other impairments resulting from autism should be considered, such as those impacting verbal and non-verbal communication and social interactions. Further, court officials should be aware that an accused autistic offender may “respond and perform neurologically inconsistently depending on emotional state, familiarity with the people and situation and various sensory experiences.” A Legal Review of Autism

[box] “While the capacity for empathy in individuals with autism is increasingly recognized, autism is often associated with difficulty recognizing the internal states of others. The ethical implications of this alleged trait are startling and further complicate the already fuzzy logic of culpability. Even when very bright, individuals with autism are seriously handicapped by their inability to understand social cues or to reason intuitively in relational contexts. When they engage in criminal conduct, establishing their responsibility may be harder than in other cases of mental defect, because both cognition and volition may be intact, but perspective may be lacking in a way that cannot be dismissed as simply evil. Autism’s unique dissonance between self and other, its lack of perspective and mind-theory, has nothing to do with socio-pathology and can be, in fact, quintessentially innocent. Many individuals with autism would certainly be capable of premeditation, competent to stand trial, and able to withstand punishment.” Autism in the US [/box]

A threshold issue before an accused autistic offender can stand trial is whether the individual is competent to do so. Legal hearings are conducted among a group of people, therefore they necessarily involve the interpretation of social cues. An accused’s autism may impair their ability to interpret social cues to such an extent that they could not be expected to adequately participate in a hearing. Clinical Neuropsychiatry However, the standard an accused must meet to be found incompetent to stand trial is high. Further, if an accused does meet the standard and is found incompetent to stand trial, such a decision will likely compel a civil commitment process.

Insanity in the context of a criminal defense can be used in two primary ways to prevent or mitigate punishment for an offense. In the case of an accused autistic offender, the offender’s autism could either negate the mens rea element of the offense charged or, despite the presence of all elements of the crime, excuse the offender’s conduct.


Autism & The Guilty Mind

Mens rea means guilty mind and is the core requirement of culpability which distinguishes criminal law. Without a guilty mind, there is little justification for society to condemn or punish an offender for his actions based on the offender’s blameworthiness. Criminal offenses typically include one of the following mens rea requirements:

  1. Purposeful:: A person acts purposely as to a particular result if it was his or her conscious object to cause such a result.
  2. Knowingly:: A person acts knowingly as to a particular result if it was not his or her conscious object to cause such a result, but he or she was practically certain that the conduct would cause that result
  3. Recklessly:: A person acts recklessly as to a result if it is not his or her conscious object to cause such a result, but he or she is aware of a substantial risk that his or her conduct would cause such a result
  4. Negligence:: In criminal law, generally only gross negligence is punishable. A person acts with gross negligence if they are unaware of the substantial risk his or her conduct would cause a particular result, even though they should have perceived it and such failure to perceive that substantial risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the offender’s situation.
  5. Strict liability:: No mens rea is required. Liability may be imposed regardless of the offender’s state of mind at the time of the offense.

Typically, the mens rea requirement for an offense must exist concurrently at the time of the conduct constituting the offense. Autism would negate the mens rea requirement of an offense if at the time the offense was committed, because of the offender’s autism, the offender did not know or understand the possible consequences of his conduct, or did not know or understand those consequences enough to judge whether the risk of their occurrence was substantial, practically certain, or remote. Further, autistic persons who commit crimes may “have troubles modulating their need for rewards according to environmental demands, rules and legislations, since this requests an ability to read social signals and comprehend what is beneficial for the group, by taking the perspective of other people.” Clinical Neuropsychiatry

Both the intent and motivation of an accused autistic offender may be difficult for judges, juries, and others involved in court proceedings to comprehend. Responses which are typical for many autistic persons within social environments are often seen as demonstrating antisocial behavior. Therefore, it may be necessary to evaluate criminal intent differently. A Legal Review of Autism Whether an accused autistic offender has the required guilty mind depends on the neuropsychiatric deficiencies and psychosocial dysfunction particular to the accused. Even though an accused autistic offender with high intellectual capacity “may have sufficient cognitive capabilities to comprehend the law,” they can at the same time lack the ability to “assess social situations,” “appreciate other’s point of view,” or “comprehend consequences of criminal actions and how they impact other people.” Clinical Neuropsychiatry  The inability of an accused autistic offender to comprehend the consequences of criminal actions and how they impact other people often stems from “deficiencies in mind reading capacity and perspective taking that may have implications for imagination, cognition and understanding: a mental handicap that can be very difficult to explain in court.” Clinical Neuropsychiatry


Autism as Excuse

If a court determines that all required elements of the offense committed by an autistic accused, including mens rea, have been satisfied, the accused may still escape liability for the offense if his autism is determined to be an excusing condition. An excusing condition may allow an accused to escape liability where he has a disability which affects him in such a way as to make it no longer reasonable to expect him to have avoided committing the offense. In theory, criminal laws punish offenders due to the offender’s individual blameworthiness and society’s desire to prevent future crimes. The punishment imposed on an offender is, in part, determined based on the deterrent effect such punishment will have both on the individual offender and on other potential offenders. Generally, it is thought that the higher the penalty imposed for an offense, the more likely the individual offender and other potential offenders will not commit the offense in the future. However, because autistic persons often have an inability to internalize risks, the size of the penalty imposed is unlikely to affect the deterrent impact of such a penalty. Further, meltdowns, sensory overload, and other symptoms common to autism may present situations where an accused autistic offender could cognitively comprehend his conduct but be, at the same time, unable to control himself to avoid such actions.

In determining whether an accused’s mental condition is sufficiently severe to excuse liability for a criminal offense, courts use several different tests. Two commonly used in the United States include the McNaughten Test and the ALI Test.  The McNaughten test is the most commonly used and is based on the ability of the accused, at the time of the offense, to understand the nature and quality of his actions or to understand that his actions were wrong. If the accused did not understand either or both conditions as a result of a mental disease or disorder, then he has a defense of insanity.  The ALI test is used by a strong minority of states and in based on the ability of the accused at the time of the offense to either understand that his conduct was wrong or to control his conduct to comply with the law.

In addition to the difficulties autistic person have imagining the possible consequences of their actions, particularly in social situations, other impairments may affect whether an accused autistic offender was able to appreciate the wrongfulness of their own conduct or to be able to control their conduct at the time of the offense. Due to the extreme variability of symptoms seen in autism, the types and severity of symptoms suffered by the accused autistic offender will need to be taken into consideration in determining whether either of the above standards would be satisfied, thus allowing the accused the defense of insanity to the offense charged.

Autistic persons are often said to lack empathy. Empathy, according to psychiatry, “consists of cognitive and affective aspects and it has been suggested that deficient cognitive empathy is a recurring trait in perpetrators with [autism], manifested through reduced abilities to read social signals and cues like facial expressions, vocalization, and gestures.” Clinical Neuropsychiatry

[box] “At the core of the empathetic deficit in [autism] lies an inability to attribute mental states to others, commonly denoted as a deficient theory of mind. . . . (or mentalization) [which] refers to the ability to estimate the cognitive, perceptual, and affective life of others as well as of the self . . . sometimes referred to as “mind blindness,” in other words an actual decreased capacity to read social cues and to understand the meaning of an act. Perpetrators with higher functioning [autism] have shown marked difficulties in understanding that another person has a different emotional cognitive experience of a shared event. This characteristic however seems quite specific to [autism]; psychopaths on the other hand do not seem to show any deficiencies in the ability to represent mental states but are more often reported to present deficient emotional empathy, characterized as deficient response to the emotional displays of others. Moreover, moral development also seems to differ between the two different diagnoses where it has been argued that children with autism show relatively preserved moral judgments (as long as the judgment does not require the representation of the intent of the perpetrator), which psychopaths do not.” Clinical Neuropsychiatry[/box]


“[MRI] studies have presented results suggesting that the perceived fairness of others may have an impact on brain reactivity as well as behavior [in autistic perpetrators]. From a clinical point of view, it is not uncommon that subjects with autistic traits easily feel offended and experience that others are not fair. This might lead them to vengeful behavior; planning and committing crimes in order to, from their viewpoint, restore the balance” Clinical Neuropsychiatry It would be difficult to argue that an accused autistic offender who engaged in extensive planning prior to committing an offense was unaware cognitively of what he was doing. Further, if such plans included ways to avoid detection of the offense by law enforcement, it would be difficult to argue that an accused autistic offender did not appreciate the wrongfulness of his conduct. However, in such a situation, it would still be possible that the accused autistic offender was unable to control his conduct. Preoccupations and compulsions, similar to characteristics of obsessive-compulsive disorder, are known autistic traits. Clinical Neuropsychiatry

autism-blue Lighting Up Criminal Law in Blue: Autism, Excuse, and the Guilty Mind

Over the month of April, we will be blogging about several areas of the law and how the law affects, and is affected by, those with autism. We invite you to visit our website, like us on Facebook, follow us on Twitter, and read and share our blog as we do our part to raise autism awareness.

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