Autism Spectrum Disorders and the Criminal Law

Abstract

While criminal offending by persons with Autism Spectrum Disorders is rare (see R v George, 2004: at [44]; see also Bishop, 2008), the symptoms of such disorders have the potential to be relevant to almost every aspect of the criminal justice process from interviews with suspects by the police, to accused persons’ fitness to stand trial, a variety of defences to which accused persons may be entitled, especially self-defence, mental impairment/insanity, provocation and diminished responsibility, and to the sentencing process. For over 20 years there have been suspicions (see eg Tantam, 1988) that persons with such disorders may not just be alienated from the general community, but have been over-represented in the criminal justice population. ”In 2004 the National Autistic Society in the United Kingdom (2004: 4) stated: “There is (sic) no data on the proportion of people with autism in the prison population. The NAS is aware of reports from families of distressing encounters with the police where an individual’s condition has not been recognised, or where their needs are not properly understood in prison.Without an informed and flexible approach to management custodial sentences can be highly punitive and completely unproductive for a person with autism, and it is important that their increased vulnerability to abuse is recognised.”” Recent court decisions in the United Kingdom, Australia, New Zealand and Canada are notable for their exploration of ways in which such disorders, especially Asperger’s disorder, have the potential to exclude or mitigate criminal responsibility and culpability. This chapter explores issues arising in the criminal law for persons with the Autism Spectrum Disorder that most often arises in criminal law proceedings: Asperger’s disorder, often described as high functioning autism. It does so by analysing recent court decisions in a number of countries and reflecting upon the extent to which expert evidence is enabling courts to evaluate effectively the ramifications of the disorder within the context of determining criminal responsibility and culpability.