AUTISM SPECTRUM: ON THE WRONG SIDE OF THE LAW?
While it may be well known that many individuals with Autism Spectrum Disorder (ASD) are victimized and bullied, it often comes as a surprise to learn that individuals with ASD are increasingly finding themselves detained in the back of a police wagon or seated in a courtroom at the defendant’s table. That’s why the demand for education and awareness on this timely topic is greater than ever before.
So, why are we seeing this rise in criminal offenders? For one, what may appear to be an increase in offenders with ASD may simply be attributed to an improvement in identifying them. The prevalence of autism is far more common than we knew. According to the latest report by the Centers for Disease Control and Prevention, 1 in 68 individuals have autism and 1 in 42 males are on the autism spectrum. Secondly, police officers do not recognize the tell-tale signs of ASD and innocently mistake key behaviors as suspicious activity. And lastly, these so-called offenders do not understand that what they are doing may be wrong, let alone criminal.
Figuring out why we are experiencing greater numbers of ASD offenders is not as simple as it may seem. As is often the case, we must first pinpoint the problem before we can remedy it. Is it because police officers don’t understand? Is it because those with ASD lack the requisite mental capacity to understand right from wrong? Even if we begin to understand why this is occurring, what’s the fix? And, how do we balance the need for the public’s safety against the need to protect the rights of the vulnerable ASD population?
Here’s what I do know. While I am rewarded in representing criminal defendants with ASD, I am also left heartbroken. The issue of ASD and crime is complicated and there is a lot of work to be done. And, raising awareness is a good first step on the road to initiating change.
UNRAVELING CRIME AND AUTISM SPECTRUM DISORDER
The question on the minds of so many people I encounter is: “So, how did this happen?”
When the facts of a given case are exposed, it is often difficult to imagine how an individual with Autism Spectrum Disorder (ASD) could have landed in this predicament. What occurred that resulted in their being arrested, handcuffed and charged with child pornography, sexual assault or terroristic threats? For those of us who understand ASD, we may be bewildered by the thought of what could have taken place that led to an arrest and possibly imprisonment. After all, we know that generally speaking, individuals with ASD are not violent nor of a criminal nature. Rarely do they intend to harm another person or intentionally pursue others with the purpose to harass or terrorize them.
What transpired leading up to this point? What factors contributed to this individual coming into contact with law enforcement and the criminal justice system? The simple answer is isolation and naivety. With such easy access to the internet, many teens and adults with ASD spend countless hours facing a computer screen. Given their social deficits, the internet is often the primary conduit between them and the outside world. Curiosity often draws them into chat rooms or pornography sites and with the inadvertent click of a tab or a link, they enter the forbidden world of child pornography.
Another scenario may include a curious teenage boy who spots a girl on the street whom he finds attractive. Naïve and often possessing the emotional maturity of a young child, he approaches her and inappropriately touches her buttocks or other body part. And, then there’s the case of the young boy whose impulsivity and lack of emotional regulation leads him to threaten someone who invades his personal space or whom he perceives as a threat.
None of these possible scenarios possess an element of mean-spiritedness, an intention to hurt or to scare the other person. The conduct of the individual with ASD is an unintentional knee-jerk reactionrather than a conscious action.
Hopefully, it is becoming somewhat clearer that the key to answering, “how did this happen?” is understanding ASD. And, really understanding and appreciating ASD. That is no simple task. ASD is a complicated neurological and development disorder that manifests differently in every person affected. That is why each case is as different and unique as the individual who committed what society deems a criminal act. To understand what happened, we must better understand the person who behaved in a way society considers inappropriate and unacceptable according to its rules and regulations. At least that is where we need to start.
MY SON WITH ASD A STALKER?
These are the words I hear uttered over and over again in my work with criminal defendants on the autism spectrum. That’s when my challenge begins. My mission: to persuade others in power to understand why this individual could not possibly have committed the crime he is charged with. Of course, each case is as different as each individual. In certain cases, it is possible that someone with Autism Spectrum Disorder (ASD) may have knowingly committed such an offense. But, in most scenarios, after reviewing all the information on this particular defendant, I arrive at the same conclusion – it just isn’t possible, at least not intentionally.
Of course, that assumes you understand ASD. If not, well then, all bets are off. If the police officer, attorney, judge or prosecutor views this defendant through the lens used for more typical criminal offenders, then the situation looks very different. The behavior that resulted in an arrest is perceived as criminal under the law. For the court and prosecutor, it is that simple. But, is it? I would argue it is anything but. Because ASD is very complicated. It is at times often subtle and unrecognizable to the uneducated eye. That’s what makes it so imperative that those making what can be life-altering decisions for these offenders understand that it isn’t what it looks like. Which is exactly what I set out to do when I represented an individual charged with stalking.
This so-called criminal offender was sitting behind the wheel of his parked car for hours outside the alleged victim’s home, binoculars in hand and food on the empty passenger’s seat. A concerned neighbor called the police to alert them to what she believed to be highly suspicious activity. The police arrived, ordered the driver out of the car and proceeded to arrest him. When I asked my client if he understood why what he did was wrong or illegal, appearing obviously puzzled, he answered, “No.”
Fast forward to him being criminally charged with stalking, and a trial date set. I approached the prosecutor to plead the uniqueness of my case. I told her it isn’t what it looks like. In disbelief, she responded “Are you kidding? There were binoculars and food in the car.” I passionately persisted in my attempt to make her understand. She resisted at first, but I was able to bring her around to my way of thinking. The case never saw the inside of a courtroom and my client avoided a criminal conviction. Not all criminal defendants with ASD are this fortunate. That’s why the mission I have chosen to undertake won’t be expiring anytime soon.
THE SPECIAL NEEDS STUDENT: LOOKING AT IT FROM BOTH SIDES
For parents or guardians of a child with special needs, the thought of how their child is faring at school is never far from their mind. This time of year is always of concern and often very anxiety producing. Tweaking the IEP is often the focus of those concerns. What needs adding? What needs changing? What needs improving? What isn’t working? And, how do I go about getting the IEP revised? Most parents or guardians feel scattered and scramble for time to be sure it is all in place from day one of the new school term.
Let’s now consider how it looks from the school’s perspective. They may well be thinking, “What will we be hit with now? What will the parents tell us about what we are not doing or not doing well? How can we prevent another student meltdown? Which teacher is best to handle this particular student? Does this student need additional support, a one-on-one aide, more pull out classes, or a behavior plan?”
The greatest lesson I have learned from years in my law practice is that the best approach is cooperation and collaboration. What I always tell parents who come to me for educational assistance with their child, is this: “I do not go into the school with my guns blazing.” I don’t believe creating an atmosphere in which the recipient feels attacked accomplishes anything good. It only creates defensiveness and puts the school on the offensive.
Whether the parent will be able to really hear this depends, of course, on where parents are in the process. Most parents whom I meet with are feeling overwhelmed, cheated, angry, frustrated, impatient and sometimes hopeless. Many have already been given what they consider the runaround. So, they are often not receptive about approaching the educational demands of their special needs child with openness and flexibility.
I believe that the root of the problem between the parents and the school is often a misunderstanding rather than a deliberate withholding of necessary services or accommodations. Sometimes, school personnel need educating themselves! Instead, parents may assume a school should know exactly what the student needs and that is not always the case. Sometimes, too much onus is placed on the school to provide what the parent requests without creating a better understanding first of what is needed and why. This is especially true because each child is different and may have needs unique to that particular student.
All in all, my experience in the legal arena of special education is that more is accomplished when we can approach it from an “us” perspective rather than a “you versus me” and all attempt to be on the same team. At the very least, that’s where we should start.