Where Autism Advocates and Criminal Justice Advocates Can Agree

As both an advocate for those on the autism spectrum as well as for criminal justice reform, I’ve seen competing interests get in the way. I believe advocates from both groups want the same thing but political correctness and optics sometimes hinder broader goals from being accomplished.

Let’s start with where both sides agree: Neurodiversity advocates and criminal justice reformers both believe autistic people deserve fairness in their interactions with law enforcement. No one from either group would argue that the police are receiving the necessary de-escalation training they need. Steve Silberman’s recent New York Times Op-Ed eloquently describes the problem as it exists today. As Silberman suggests, a double rainbow of sorts exists for individuals of color and those on the autism spectrum. Behavior that is not easily understood by untrained law enforcement combined with institutionalized prejudices associated with race can be a lethal combination for minority individuals with disabilities.

Representatives for both criminal justice reform and autism advocates believe in both mandatory trainings and systematic departmental policies be put in place for law enforcement. As Silberman’s reporting shows, individuals with autism can be misinterpreted as being intoxicated or on drugs due to their unusual behavioral mannerisms. “Noncompliance” elicits signs of aggression from those in law enforcement when most of the time, other elements are at play. A harsh tone of voice on the part of the officer, not understanding what one did “wrong” and the sensory overload of sirens and being screaming at can create the perfect storm.

Both sides also agree in reform for juveniles on the autism spectrum. As talking points will go, we all agree interrogations for juveniles who are on the spectrum should not take place without a parent or guardian’s permission and are unethical. We agree that autistic individuals and juveniles can’t be held to the same legal criminal responsibility or sometimes even competency standards as an adult with a fully developed brain. And we agree that more compassion needs to be shown. Even some prosecutors are catching on to this fact as it applies to juveniles on the autism spectrum.

So where do the parties disagree? Well, the disagreements aren’t totally out in the open but they are there just enough to be noticeable. To understand why these disagreements exist, it helps to know a little bit about some of the views autism advocates hold.

Autism advocates are brave individuals who have been fighting extremely hard for self-determination over the years. Among these autism advocates, those involved in the neurodiversity movement have been at great pains to show society that autistic individuals are not are lab rats but people who can speak for themselves. They would argue (and I would agree) that autistic rights are civil rights and vice versa. Very positive changes have come about because disability advocates have been willing to stand up for their rights. The creations of the American with Disabilities Act, the Special Olympics, organizations run by and for autistic people and the inclusion of autistic people in the workplace are just a few of many accomplishments that can be named.

The heart of the issue for those in the neurodiversity community is the idea that neurotypicals seek a cure for autistics which conjures up images of holocausts and eugenics of the 1920’s. This is undeniably true. It’s this sentiment that caused the measles outbreak at Disneyland in 2014. It’s this sentiment that leads anti-vaxxers on their crusades with their junk science. It clouds the language of every journal article you read with such terms of “risk factors for developing autism” and “epidemic”. Anyone who claimed an “epidemic” of blackness in their neighborhood would rightly be called a racist. Autism advocates feel the same way when ableist language is used. Adult advocates are particularly sensitive to how autistic children can pick up this language and begin to internalize it. They rightly point out that there is a real child in there who can hear what’s being said and be puzzled and confused why there is so much being made regarding their very existence. Eventually as time goes on, advocates point out that these children will realize that their differences are viewed quite negatively by the rest of society.

Against this backdrop comes people like me who support inclusive societies for individuals on the spectrum but also want criminal justice reform for individuals on the spectrum. So you still may be asking: Where is the disagreement here?

The disagreement is usually most visible when an adult with autism commits a crime and there is no disputing it. When this happens, most autism advocates want to immediately divorce the autism from the crime. Very frequently one will hear cries of….”We’re treated bad enough as it is, let’s not make this about his autism!” Or……”We can’t let him use his autism as an excuse.” Or….”This autistic stereotyping has got to end.” Or even….”He needs to go to prison. It’s not his autism that caused him to do this, he chose to do this.” I’ve even heard some people say…..”He’s not autistic, they are just saying he is. He probably shopped around for a diagnosis or self-diagnosed.”

These remarks come from a very understandable place. From the perspective of these advocates, self-determination is undermined and even threatened every time the autistic community gets stigmatized by one of its own. Autism advocates imagine Adam Lanza being the poster child for the troubled autistic young adult who did the unspeakable and they become mortified that this heinous act would pervade people’s view of those on the spectrum. Forget Adam Lanza. Even a less serious crime being linked to autism can be problematic on a number of levels.

Let’s assume a man in his 30’s on the spectrum is charged with stalking, obviously a far cry from what Adam Lanza did. Taken from an actual case study I am personally aware of, this young man misinterpreted the signals that were being sent to him and would not take no for an answer. At first, the woman tried “nicely” to intimate that she was not interested in him but he misread this behavior as exactly the opposite. By the time she made clear that she wasn’t interested in him, his dismay reached epic proportions. He felt betrayed. He couldn’t understand why she initially led him on like that. Why did she “pretend” to like him only to let him down in such a cruel way? He began sending her gruesome images online. She was granted a temporary restraining order but he broke the conditions of it. He now sits in jail on a bond of $400,000 (Yes, that was his actual bail).

Most typically developing human beings would have easily been able to see at the outset that this woman wasn’t interested in him. Yet this young man was emotionally invested and truly believed that the woman was playing mind games with him. Owing partly to immaturity, trouble reading social cues, lack of central coherence (seeing the big picture) and theory of mind issues (TOM), this man acted in ways that society deems completely unacceptable. The question is: Should he be treated the same as the stalker who knew from the outset that the woman did not like him? Should he be placed on a sex offender registry? Shouldn’t we be providing treatment for an individual like this?

Autism advocates would probably grapple a bit with this particular case. On the one hand, they wouldn’t want this behavior to become “normalized” in the public’s mind as the way all autistics behave. On the other hand, if they were being honest with themselves, they probably could point to a time when they were misunderstood or where they misread a situation to an embarrassing degree, even if they never acted out on it to this extent. A case like this would be something of a rorschach inkblot test for where an autistic person stands on this issue.

In the seven years since I’ve become interested in the criminal justice system as it applies to autistic individuals, I’ve heard of at least a hundred stories like the one above. In every single one without exception, there were mitigating circumstances where the diagnosis of autism precluded the individual from fully realizing the implication of his actions. The crimes ranged from petty theft, to possession of illegal images, to stalking to exhibitionism to assault. But with full disclosure, most of the crimes were of a sexual nature. The neurodiversity advocate in me would like to point out that correlation does not equal causation and that’s perfectly true. There really is no evidence at all to suggest a greater incidence of sexual deviance in the autistic population. At the same time, when one sees a real pattern going on….whether politically advantageous to one’s cause or not, it can’t and shouldn’t be ignored. The main rub lies with the nature of the crimes that many of these young men are committing. We know that sex crimes are the most abhorred crimes imaginable and the last thing the autism community wants is to be in the same category as a sex offender (or to be viewed in the same category). The reality is that the vast majority of autistic individuals do not have predatory instincts and are far more likely to be the victims rather than than victimizers of a crime. More importantly, autism is almost always a mitigating factor in hindsight and sometimes individuals with autism have no idea they have broken the law until they encounter law enforcement. We also know that when autistic individuals are taught rules or social norms they will probably adhere to them religiously once they know they’ve crossed the line. No one wants harmless autistic individuals sitting in prison where they are vulnerable to the elements of a society they can’t possibly begin to understand or integrate into. Let’s be real: Many of these people spend the majority of their time in solitary confinement. We can’t be in favor of that. But to get to a place where both sides are working towards the greater good, we need to try to understand how these crimes can happen.

One explanation put forth by Dorothy Griffiths (2013) is called “counterfeit deviance”. Deviance which is not really deviance at all. Deviance in which the behavior mimics deviance but is in reality related to a function inherent in one’s autism. As reported from an article in 2007 from research done in Canada…”Counterfeit deviant behaviours are not typically associated with ongoing sexual fantasies or urges or the intention to either harm or humiliate others. They reflect instead the restricted life of the person with the disability, who may have been denied sex education in the past or not provided avenues to pursue sexual interests in a safe and appropriate way.” Counterfeit deviance certainly doesn’t explain every offense an autistic person commits. But even when counterfeit deviance cannot absolutely be established, there are likely going to be mitigating factors present for the individual on the spectrum. How do I know this?

In researching these cases, I took the time to read the expert reports which almost without exception documented how the autism contributed to the person’s alleged behavior. Most of these reports were not refuted or rebutted by any expert of the prosecutor’s chosen experts. But as is true with the vast majority of cases, defendants with autism are usually offered plea bargains and are thus forced to either accept a shorter period of incarceration and registration as a sex offender or risk years or decades in prison. Given what we know about how autistic individuals handle incarceration, it’s understandable that they opt for the plea bargain.

The criminal justice reformers will not go away. But I fear their voices aren’t enough to help the criminal justice system become more compassionate. Powerful change effectuates itself when the stakeholders themselves speak their minds. We all need to advocate for treatment and rehabilitation (or simply habilitation) versus incarceration and stigma for those on the spectrum and for all low risk individuals. These two advocacy groups need to become brothers-in-arms and we are not even on the same battlefield. One anecdote might help:

I received an email from a family whose son will be heading to federal prison in a month for possession of illegal materials. Every expert who evaluated him determined he was not a threat to children, would probably not reoffend and that he had a significantly disadvantaged childhood of isolation and loneliness. He volunteered to complete almost 150 hours of sex offender treatment before sentencing which was not a condition imposed on him by the judge. He never had friends so the computer became his outlet to explore in what he thought was his private domain. Never did it occur to him that what he was doing would affect let alone victimize others since in his mind, he had nothing to do with making this material. He never had a girlfriend nor did he know much about sex.

His sensory issues regarding water have made it where he has never taken a shower, only bathes. Last week he took the first shower of his life in preparation for prison.