Autism Spectrum Disorder (ASD) and Social (Pragmatic) Communication Disorder (SCD) are characterized by pervasive difficulties with communication and social functioning across diverse social settings. Despite these social impairments, it can be difficult to identify the presence of ASD and SCD in higher functioning individuals. Unfortunately, this adversely impacts individuals with ASD and SCD—particularly in legal settings, where they may not receive adequate assistance or consideration.
Autism Spectrum Disorder (ASD) and Social (Pragmatic) Communication Disorder (SCD) share many symptoms.1 Both SCD and ASD are characterized by difficulties communicating in a socially appropriate and effective manner. This includes adapting speech to a social setting (such as a classroom, a playground, or the library), understanding the social aspects of conversations (taking turns, identifying sarcasm or humor), and using and interpreting nonverbal aspects of communication (facial expressions, gestures, posture). An individual with ASD or SCD may experience difficulty with adapting to novel situations. Furthermore, individuals with these disorders often have a significantly impaired theory of mind, which is the ability to appreciate the perspective of other people, understand how they think, or recognize that they may think differently from oneself.2
People with these disorders frequently become confused and/or frustrated if their routines are disturbed or if questions are complicated and difficult to follow. In addition to these shared features with SCD, ASD is characterized by odd mannerisms, such as difficulty with eye contact, repetitive behaviors or patterns of speech, and having a concrete and literal approach to interpreting statements and situations.3 (Notably, a diagnosis of ASD supersedes that of SCD, and both should not be diagnosed in the same person.)
Despite the pervasive social and functional impairment of ASD and SCD, most people have difficulty recognizing when a person has SCD or high functioning ASD (previously referred to as Asperger’s Disorder). This conundrum is explained, at least in part, by the fact that individuals with ASD or SCD often have strong verbal skills, can carry out conversations (albeit in an awkward manner), and possess no facial or physical abnormalities. Furthermore, there is considerable variation in the outward behavioral manifestations of ASD4 and SCD. As such, many individuals with ASD or SCD go unidentified and do not receive the assistance or support that they may need.
Lack of identification of ASD or SCD can have a profound impact in the criminal justice system. In Jodi Picoult’s novel House Rules,5 Picoult introduces readers to Jacob Hunt, a young man with Asperger’s Disorder who is charged with murder.6 Though fictional, Picoult’s portrayal of Jacob reflects many of the unique aspects of high functioning ASD, including high intelligence, fascination with a narrow topic, literal thinking, difficulty understanding the perspective of others, and often being misunderstood or misinterpreted. In fact, Jacob’s symptoms and behaviors are often misunderstood by law enforcement, resulting in the erroneous inference of guilt.
This misinterpretation, as it happened in the novel and common real life cases, is likely due in part to the fact that professionals in legal settings are not typically trained in mental health and related behavioral observations. Without the knowledge of the disorders and their symptoms, the characteristic behaviors of ASD and SCD might simply be dismissed as a quirk or an act of defiance, rather than an indication of psychopathology. Due to these social and functional impairments, people with ASD and SCD can be significantly disadvantaged in court, adversely affecting their adjudicative competence, criminal responsibility, and the way they are perceived in court. In fact, both the Missouri Court of Appeals7 and the Superior Court of New Jersey8 have ruled that a lower court erred in denying the admission of evidence of the defendants’ diagnosis of Asperger’s Disorder, reasoning that admission of such evidence could have affected the verdict. This article endeavors to raise awareness of these issues among legal professionals.
A defendant’s competency to stand trial may be compromised due to impairments rooted in ASD or SCD. In the state of Minnesota, competency to stand trial requires that a defendant be able to rationally consult with counsel, understand the trial proceedings, and participate in the defense.9 Although the US Court of Appeals for the 10th Circuit suggested that a diagnosis of Asperger’s Disorder alone is does not always warrant a competency evaluation,10 this is akin to the notion that not all cases of schizophrenia render a defendant incompetent to stand trial. The adjudicative competence of a person with ASD or SCD, and even whether or not a hearing to determine competency is necessary, must be determined on a case-by-case basis.
There are many symptoms of ASD and SCD that should be taken into consideration when determining whether an individual is competent to stand trial. The ability to consult with counsel could be limited by deficiencies in communication, social skills, and theory of mind.11 A defendant with ASD or SCD might not fully appreciate that his attorney does not know everything that he knows, and may fail to recognize salient or important information that he should share with his attorney. Similarly, he may have trouble understanding abstract concepts and open-ended questions. Conversely, however, a defendant might provide concrete responses to yes or no questions without mentioning important caveats or other relevant information. For example, in response to an attorney’s questions about whether the defendant was present at the victim’s house on a Friday night, the defendant might simply say “Yes” without mentioning that he left three hours before the murder took place. The defendant may also fail to disclose that he has a credit card receipt proving he was elsewhere at the time of the crime.
Characteristic aspects of ASD and SCD could also impact the defendant’s understanding of legal proceedings. A defendant with ASD or SCD might have considerable difficulty during testimony, particularly cross-examination. Such defendants tend to be particularly agreeable, rendering them susceptible to suggestibility (i.e., influenced to believe something that is not true) and confabulation (i.e., unknowingly reporting something false as true). Instances of suggestibility and confabulation could result in defendants supplying inaccurate and/or incriminating evidence, heightening the risks of false confession or wrongful conviction.
Lacking the support that a defendant with ASD or SCD may require, the defendant could have difficulty plea-bargaining, as he might not truly understand what he is agreeing to in a plea. For example, he might not fully understand what it means to be incarcerated or on probation. Moreover, a defendant with ASD or SCD has a concrete manner of thinking that might prevent him from accepting a plea to a lesser charge, as he could interpret this as lying to the court through “admitting” to something he does not believe happened. Additionally, defendants with ASD or SCD might not be competent to dismiss counsel and represent themselves pro se. The Iowa Court of Appeals reasoned that a defendant with Asperger’s Disorder could be in the gray area of being competent to stand trial, but not competent for self-representation.12 In light of these issues, criminal justice professionals must be aware of the deleterious impacts of ASD and SCD on competency to stand trial.
According to Minnesota statute, a person is not held criminally responsible if due to a defect of reason, he did not know the nature of his act, or that it was wrong.13 Since these requirements extend beyond social comprehension and communicative impairments, questions of criminal responsibility tend to be more applicable to ASD than SCD. There are several ways by which ASD may affect the defendant’s ability to understand the nature and wrongfulness of his actions.14 First, limitations in theory of mind could contribute to an individual with ASD being duped or manipulated by another person into engaging in a criminal act.15 For example, a drug dealer might ask a person with ASD to deliver a package to a friend. Unable to recognize the considerable possibility that the local drug dealer might have placed narcotics in the package, the individual with ASD might willingly cooperate in an effort to follow the social rule of being helpful to others.
Second, there are situations in which an individual with ASD might break a law because he was trying to uphold a rule perceived as “more important” than the law that is broken. For example, an individual with ASD who is served with a restraining order (e.g., failed to detect the social cues to leave another person alone) might feel compelled to rigidly adhere to the social convention of apologizing to the victim. Unfortunately, a judge who finds that a defendant violated a restraining order may not understand the importance that an individual with ASD may place on following such key social rules.16
Third, the cognitive and adaptive deficits of ASD may contribute to impulsive criminal behavior.17 Specifically, individuals with ASD commonly suffer deficits in general problem solving skills and coping mechanisms. These impairments can contribute to aggressive and impulsive behaviors when frustrated or distressed. For example, a person with ASD might swing his arms in agitation, inadvertently striking another person. Even in cases where the symptoms of an individual with ASD may not entirely excuse criminal responsibility, the presence of ASD and an explanation of the challenges faced by the defendant may, at the very least, serve as valuable mitigation evidence when arguing at sentencing.18
Perception by the court
In cases where ASD or SCD does not impact a defendant’s adjudicative competence or criminal responsibility, these diagnoses are still likely to affect the trial process for the defendant. In particular, behaviors associated with ASD and SCD may negatively affect the perception of the defendant by the judge and jury. The body language and emotional expression of a defendant with ASD or SCD may not match his internal experience. For example, a defendant’s awkward and repetitive mannerisms (e.g., lack of eye contact and manner of speech) could irritate members of the court, rendering the defendant less relatable and potentially impacting his perceived credibility as a witness. Further, along with taking the perspective of others, individuals with ASD and SCD have difficulty displaying emotions and empathy. If the defendant does not think that it is logical or rational for another person to be upset, he may appear more confused than remorseful. These behavioral quirks and mannerisms may be misinterpreted as indicators of guilt or a lack of remorse by the judge or jurors.
If so, there is an increased risk of not only a conviction, but also a more severe sentence. To this point, in one case the Superior Court of New Jersey opined that admitting evidence of a defendant’s diagnosis of Asperger’s Disorder could have provided the jury with a clearer lens through which to understand the defendant’s behavior (New Jersey v. Burr, 2007).
What to do?
There are several steps that can be taken to improve outcomes for individuals with ASD or SCD in legal settings. In the case of attorneys, simplified language should be employed in all meetings with clients. This includes the avoidance of idioms and metaphors during conversations with clients. Attorneys should also ask their clients to report every detail, regardless of how insignificant it might appear. Finally, attorneys should avoid trying to fill in the blanks for the client, as this could lead to suggestibility and confabulation.
In the case of the courts, expert witnesses can play an important role in preparing the court for the unique ways in which ASD and SCD impacts the defendant. In so doing an expert witness (e.g., psychologist, psychiatrist, medal doctor) can clarify the nature of ASD and SCD, and describe how the disorder can affect information processes and perceptions of the world. Character witnesses (e.g., caregivers, family members, vocational counterparts) can offer individualize information about the defendant’s symptoms and personal strengths and impairments. Educating the court in this manner will reduce the likelihood that members of the court will misinterpret the person’s behaviors and mannerisms. To maximize impact, these behaviors and mannerisms should also be discussed by attorneys during opening statements and reiterated during closing arguments.
As highlighted in this brief article, the pervasive communication impairments of ASD and SCD can have a negative impact across diverse social settings, including legal settings. These impairments can limit a defendant’s competency to stand trial or even call into question his or her culpability for a crime. Unfortunately, little attention is typically paid to the symptoms and impairments of ASD and SCD during legal proceedings. Increased awareness among judges, jurors, and attorneys is imperative if short- and long-term outcomes are to be improved for defendants with ASD and SCD.
CARLO A. GIACOMONI, PsyD, ABPP is a psychologist at North Star Mental Health, LLC, in the Twin Cities. He is board certified in clinical psychology, and has considerable experience in a variety of forensic evaluations. Dr. Giacomoni has extensive training and experience in conducting evaluations for both adjudicative competence and criminal responsibility.
JERROD BROWN, MA, MS, MS, MS, is the treatment director for Pathways Counseling Center, Inc. Pathways provides programs and services benefiting individuals impacted by mental illness and addictions. Jerrod is also the founder and CEO of the American Institute for the Advancement of Forensic Studies (AIAFS), and the Editor-in-Chief of Forensic Scholars Today (FST). Jerrod holds graduate certificates in Autism Spectrum Disorder (ASD), Other Health Disabilities (OHD), and Traumatic-Brain Injuries (TBI). Jerrod is certified as a Youth Firesetter Prevention/Intervention Specialist, Thinking for a Change (T4C) Facilitator, Fetal Alcohol Spectrum Disorders (FASD) Trainer, and a Problem Gambling Treatment Provider. Jerrod is currently in the dissertation phase of his doctorate degree program in psychology.
1 American Psychiatric Association (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Washington, DC: American Psychiatric Publishing.
2 Baron-Cohen, S. (1995). Mindblindness: An essay on autism and theory of mind. Boston, MA: MIT Press/Bradford Books.
3 Lecavalier, L. (2016). “Autism spectrum disorder clinical trials: One step at a time.” Autism, 20(2), 131-133; Mayes, T. A. (2003). “Persons with autism and criminal justice: Core concepts and leading cases.” Journal of Positive Behaviour Interventions, 5(2), 92-100; Woodbury-Smith, M., & Dein, K. (2014). “Autism spectrum disorder (ASD) and unlawful behaviour: Where do we go from here?” Journal of Autism and Developmental Disorders, 44(11), 2734-2741.
4 Haskins, B. G., & Silfa, J. A. (2006). Asperger’s disorder and criminal behavior: Forensic-psychiatric considerations. Journal of the American Academy of Psychiatry and the Law, 34, 374-84.
5 Picoult, J. (2010). House Rules. New York, NY: Washington Square Press.
6 Asperger’s Disorder was subsumed under the larger category of Autism Spectrum Disorder (ASD) with the release of the DSM-5 in 2013. However, certain characteristics of Asperger’s Disorder were formulated into Social (Pragmatic) Communication Disorder.
7 State v. Boyd, 143 S.W.3d 36 (Mo. Ct. App. 2004).
8 State v. Burr, 921 A.2d 1135 (N.J. Super. Ct. App. Div. 2007).
9 Minn. R. Crim. P. 20.01 (2).
10 United States v. Patterson, 713 F.3d 1237 (10th Cir. 2013).
11 Woodbury-Smith, M. R., Clare, I. C., Holland, A. J., Kearns, A., Staufenberg, E., & Watson, P. (2005). “A case-control study of offenders with high functioning autistic spectrum disorders.” Journal of Forensic Psychiatry & Psychology, 16(4), 747-763.
12 State v. Jason, 779 N.W.2d 66 (Iowa Ct. App 2009).
13 Minn. R. Crim. P. 20.02 (4).
14 Freckelton, I. (2013). Autism spectrum disorder: Forensic issues and challenges for mental health professionals and courts. Journal of Applied Research in Intellectual Disabilities, 26(5), 420-434.
15 Brown, J., Hastings, B., Cooney-Koss, L., Huntley, D., & Brasch, D., Anderson, G., Chukuske, R., Arndt, Trnka, A., Burger, P. & Martindale, J. (2016). “Autism Spectrum Disorder in the Criminal Justice System: A Review for Caregivers and Professionals.” The Journal of Law Enforcement, 5(5), 1-13.
16 King, C., & Murphy, G. H. (2014). “A systematic review of people with autism spectrum disorder and the criminal justice system.” Journal of Autism and Developmental Disorders, 44(11), 2717-2733. See also supra note 3.
17 Allen, D., Evans, C., Hider, A., Hawkins, S., Peckett, H., & Morgan, H. (2008). Offending behaviour in adults with Asperger syndrome. Journal of autism and developmental disorders, 38(4), 748-758.
18 Supra note 14.