The Right to a Defense for Autistic People: A Rejoinder to Zack Budryk’s Article

Recently there was a story in the Daily Beast that was horrific. In light of the Harvey Weinstein revelations, my stomach churned upon reading it. What was particularly more upsetting to me was that the young man involved was autistic. The circumstances are egregious.

According to the Daily Beast, defendant Jason Berlin was linked to a company called Efficient Pickup. On this website, he bragged about sexually assaulting an unconscious woman along with co-defendants Jonas Dick and Alexander Markham Smith. Berlin had sought out the services of his two co-defendants to have access to a sexual encounter.

Some autism advocates are outraged that Berlin’s sentence was recently commuted to 6 years instead of the original 8. In considering mitigation, it was established that co-defendants Smith and Dick purposefully recruited “socially inept” men for a crash course on social skills and the more sinister purposes of luring women for sex. Berlin paid for the training and also for a nearby apartment used to lure the women. At the sentence-reduction hearing, the defense lawyer put a psychologist on the witness stand who testified that Berlin was on the autism spectrum. She also testified that he had the social skills and emotional maturity of a five year old.

There is considerable anger in the neurodiversity community over the use of this defense. In an article entitled Legal Claim Rapist ‘Didn’t Know Any Better’ Is Bullshit Zach Budryk expresses his anger at Berlin’s defense in court.

“Which brings us to Jason Berlin. Berlin is currently serving a six-year sentence for participating in the rape of an inebriated woman in 2013. At the time of his crime, he was paying for seminars that claimed to train men in pickup artistry, or ‘game,’ in their parlance. Last week, Berlin’s lawyer argued in a sentence-reduction hearing that Berlin had recently been diagnosed with an autism spectrum disorder and as such was not aware raping women was wrong. It’s difficult to know where to begin with something this obscene and absurd. It brings to mind theoretical physicist Wolfgang Pauli’s reaction to a poorly written paper: ‘That is not only not right, it is not even wrong.’ Berlin’s defense claimed he was manipulated by his co-defendants, Alex Smith and Jonas Dick, and that he had the ‘social and emotional capacity of a 5-year-old,’ according to the Daily Beast.”

The purpose of my rejoinder isn’t to argue that Berlin should not accept responsibility or face the consequences of his actions. This rejoinder asks the question as to what rights autistic defendants have to present whatever mitigation may be present.

So let us indeed ask ourselves: What right does a defendant have for his counsel to present mitigating circumstances at sentencing? He has every right. The fact is, Berlin would have been perfectly justified to appeal his counsel’s ineffective assistance to an appellate court had his lawyer NOT made any kind of argument in relationship to his autism. It would have been malfeasant and arguably malpractice for a defense lawyer to avoid questions of mitigation simply because it has consequences for the autism community as a whole. That is his lawyer’s job. A lawyer cannot say to his client….”Sorry buddy, I don’t think your autism cuts it. You’re on your own.” They have a duty to zealously represent what is in the best interest of their client whether or not they are guilty or innocent. That’s the way the system is designed whether we like it or not. I wonder if Budryk is suggesting that Mark Mahoney (Berlin’s lawyer) should simply have not done his job and left his client to be hung out to dry.

Secondly, we don’t know all of the facts of this case. All we know is what is reported in the news media which, in general, tends to diminish claims of mitigation. The title of the Daily Beast’s article….I’m Autistic and Didn’t Know Rape Was Wrong clearly suggests the story is slanted against the defendant. The title plainly mocks his defense. In reality, this irresponsible title misrepresents what was argued in court as Berlin never suggested not knowing rape was wrong. This is why as a general rule of thumb, potential jurors who have been influenced by the news media are wisely excluded from the jury pool…. because they have typically been exposed to only one side of the story….the prosecutor’s. The fact that Berlin pled guilty to this crime also tells us less than we might assume in a system where plea bargains force even innocent individuals to accept prison terms that are far shorter than decades or life behind bars.

I also want to address what neurodiversity proponents are so irked by….the “mental age” defense alluded to by the psychiatrist who testified that Berlin had the social and emotional capacity of a 5 year old. According to Ivanova Smith, critics of the mental age defense point to the eugenics movement as a time when feeblemindedness and a young mental age were cited in tandem. She reminds us that words like “moron” and “imbecile” were used to describe so called individuals whose mental age did not match their chronological age. The ultimate consequences of this kind of thinking led to forced sterilization in the infamous Supreme Court case of Buck V. Bell which ultimately ended up influencing Hitler’s thinking thus leading to the extermination of millions of innocent people.

I am not insensitive to this. These are very real concerns autistic people face and they are not without merit. And in any other context, the use of that kind of language would outrage me. But not in a court of law. You can’t establish mitigation by using anything but the strongest language possible within truthful limits. And if the psychiatrist said he had the social immaturity of a five year old, she most likely based it on objective measures. One of the tests she probably (and here I am speculating) used is the Vineland Adaptive Behavioral Scale Assessment.

As you can see from the chart above (pearsonclinical.com) the Vineland measures 5 domains of adaptive behavior with 2–3 subdomains. Questions could include how often one brushes one’s teeth or how often they read the newspaper or if they cook or take out the garbage. The raw data is converted into age range equivalents. For example, if a person answers that they don’t brush their teeth on a regular basis (due perhaps to fine motor difficulties or lack of hygiene awareness) they are measured against the age range where individuals begin to brush their teeth regularly. Once all of the raw data is accessed, the scoring determines the approximate age range of where the person taking the test will mostly likely end up. If we take a look at those five domains and various subdomains, we see that there are definite struggles that autism spectrum disorder (ASD) individuals contend with. Therefore it is not surprising that many adult ASD individuals taking this test would score in the age range that might be comparable to that of a child. This does not mean that they are like a child in every conceivable way. They may drive a car, or have a job or even balance a checkbook. But they most likely don’t do a lot of things that neurotypical adults do. Does this mean we are being ableist? Does it mean that we should forcible sterilize them? Hardly. This information is being used in an extremely narrow context to help explain to the court in the most dramatic possible way why a defendant possessed a different mindset than most other defendants. The neurodiversity movement must learn that arguments for specific defendants in court cases do not represent generalities and aren’t meant to. These arguments do not at all suggest that all autistic people wouldn’t know that rape was wrong. Again, this was not even argued by Berlin in the first place. What it does mean is that he was immature, suggestible and gullible and therefore different than the average adult defendant. This does not and should not absolve him of responsibility for his actions but it IS appropriate to be presented to the court for purposes of mitigation.

A psychologist doesn’t arrive at the decision of making a mental age determination lightly. In addition to the Vineland, he or she usually gives a whole battery of tests, spends hours upon hours interviewing the defendant and also gets past reports written by clinicians going all the way back to childhood. A good forensic psychologist will also interview family members to see if information the defendant provides corroborates with third parties. It is not unusual for a forensic psychologist to spend between 30 to 40 hours with a person and then another 30 hours in preparing a report. No forensic psychologist would walk into a room and simply say…”Well, he looks like he’s behaving like a five year old. I think I’m going to say that in court.” Oh no, there has to be a lot of information, observation and testing to back up that assertion or it falls flat on its face. The fact that the judge lessened the sentence from 8 years to 6 clearly shows that the psychologist presented evidence to back up her conclusions.

Individuals on the autism spectrum have asynchronous development. While lagging behind in dramatic ways, they often compensate for them in others leading to a productive life. In the courtroom, it is the job of the defense attorney to highlight the ways in which the autism has hindered a person’s development. If they focused on that person’s strengths, it would be game-over.

No one wants to go back to the days of eugenics and holocausts. Everyone is in favor of self-determination and inclusive societies for autistic individuals. But we can’t let our fears of overgeneralization stymie the efforts of defense lawyers who are seeking to get justice for their clients.

Lastly….and this applies to Berlin too: If I believe that the sex offender registry should be abolished (and I do), I feel that way even more strongly for those with developmental disabilities. The Bureau of Justice and Statistics acknowledges a 5.3% reoffense rate for those convicted of sex offfenses which pales in comparision to crimes like burglarly, robbery and petty theft. We know that the registry ostracizes individuals, consigns them to the margins of society as a permanent underclass and makes people into pariahs. I don’t want that kind of life for autistic individuals who are at a low risk of reoffending. I don’t want individuals who already struggle mightily in life to be saddled with a civil disability that ends any chance of reintegration back into society. And that’s why I will continue to fight for the most misunderstood people among both autistic people and in the community at large.