Autism and the Law

Image by Dan4th via Flickr

I regularly encounter news stories about autism and the law; an autistic person committed a crime, or was the victim of a crime, or has had dealings with the police (because they wandered for example). Sometimes the autism aspect is incidental, sometimes it is absolutely central to understanding the story; often times people struggle to tell the difference between whether it is incidental or essential.

As a general rule I’ve steered clear of commenting on these news stories, despite having a background in law. I am aware that law and legal procedures differ across the world, so writing a story about what happened will usually require a fair amount of extra research that I usually don’t have the time to do. I also know that what is reported in the papers is a fraction (and sometimes a distortion) of what really happened; so drawing conclusions from those reports without having read the original case notes (which I am unlikely to have access to) is a dangerous and arguably pointless sport.

I’ve realised though that there are still certain important aspects of these stories that I can comment on, and clarify, particularly for those who don’t have the legal background but want to understand why a case went the way it did. So I’m going to try to do this more from now on.

This post is an introduction to the multitude of ways in which autism and the law interact; a precursor to those future posts about specific stories as they arise. I want to begin though with a brief introduction to my own experience with the law, since it seems relevant!

I am not a lawyer. I am an academic. I have a law degree (with honours including a dissertation), and I have a number of years teaching experience at two universities. I was a lecturer in law for a while, in the areas of contract and business law more generally. I continue to be a tutor in a university law school, usually teaching jurisprudence (my passion) but I’ve also taught criminal law.

As I’ve already stated, law and autism interact in a number of ways. In an effort to understand the different issues at play during those interactions, I’ve split them into three categories, with further subcategories of “against the autistic person” and “by the autistic person”. This is just a preliminary categorization, but I think it’s a helpful initial approach.

Interacting with the police

In any interaction with the police – even at the most innocent level of enquiries and investigations – autism can have a significant impact, due to problems with communication, behaviour, and social interaction. Answering even a simple and seemingly straight-forward enquiry from the police, will sometimes be a very real challenge for an autistic person, and may have very real consequences.

Other than those interactions with police by autistic people, there is also the sub-category of interaction with the police about autistic people. Such as if an autistic child has wandered, or a neighbour has complained about the child abuse they think is occurring at a home because of the tantrums and behaviour associated with autism. In these situations people find themselves trying to explain to the police that it’s not just that a child has wandered, the child is also (perhaps) non-verbal and has very limited appreciation of dangers. Or parents try to explain to the police that the child who appears injured, has suffered from self-injury that they tried to but could not stop, rather than injuries caused by the parent directly.

Legal / illegal acts

For acts performed by autistic people, their autism may go to the question of mens rea; essentially, their intent. The things we might use to infer intent for a non-autistic person, may not hold the same relevance for an autistic person. Autism also impacts on the quality and meaning of the evidence against them; shady and suspect behaviour, such as running from the scene of a crime or not meeting your eyes, can mean something very different coming from an autistic person than from a non-autistic person (this is again generally relevant to interactions with the police).

For acts performed against an autistic person, the autism may be relevant too. For example, did the autistic person supply meaningful consent to an otherwise injurious act. The existence of autism also comes up to excuse or mitigate behaviours that would otherwise be considered criminal against them, such as physical restraint, electric shocks, and other potentially harmful and demeaning behaviours.

Punishment

Judges usually have a significant amount of lee-way in the types and amount of punishment for various offenses. If an autistic person has been found guilty or responsible for an act against the law, the punishment they receive should take into account their autism. Maybe they need special mental health services, rather than incarceration. If they are placed in prison, it could be an incredibly devastating and life-threatening experience for them, far above and beyond the normal prisoner experiences.

Again, there is the separate category of the punishment for acts performed against an autistic person. They are particularly vulnerable people, so hurting or taking advantage of them might attract more harsh penalties. Also, acts which might otherwise have been considered extreme and deserving of equally extreme punishment, might be somewhat ameliorated in the eyes of the judge due to the challenges involved with the care of these people (I should perhaps clarify that I do not have in mind the recent case of the woman strangling her autistic son when I write that, I mean more so behaviours done specifically to keep the child safe from causing harm to themself or others, such as the use of restraint).

It is important not to underestimate the impact autism has on legal issues, both for when the autistic person is the perpetrator and when they are a victim. Autism should be – and often is – taken into account. But autism is not generally treated as an “excuse” for criminal behaviours. Understanding the finer details is challenging, but an important challenge, and one I will attempt to meet more often in this blog (as time and energy allows!).

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Some good advice for autistic people who find themselves engaged with the criminal justice process: “Until proven innocent”

A selection of New Zealand (local) news stories as examples of interactions and issues between the law and autism: