I am not an attorney, nor do I have any legal background. As such, I claim to have no knowledge of the law, and do not offer legal advice of any kind. What I am writing here is strictly my own opinion and impressions and is based entirely on personal experiences and stories I have heard from others in the autism community.
During the two decades since my diagnosis in late 2000, I have heard many stories about autistics and encounters with law enforcement, sometimes with unpleasant and even tragic results. Most of these have been second-hand recounting, but I have personally known members of the autism community who experienced such as well.
I will begin, however, with a small incident that happened to me many years ago.
A Minor but Memorable Encounter with the Police
Apart from being pulled over by traffic police on a few occasions, which mostly resulted in my being let go with just a warning (fortunately!), I recall only one incident where I encountered law enforcement. This long-forgotten incident, which happened when I was fifteen years old, came back to me (and quite vividly) several years ago after attending a conference workshop on autism and law enforcement.
In the pursuit of my specialized interest in anything electrical or electronic, I would often walk through my New York City neighborhood in search of discarded televisions, radios, or other electronic devices that were put out as garbage and which I would bring home, take apart, repair, and get to work. One afternoon, while coming home carrying my most recent find (an old phonograph), I was approached by two men, one of whom showed me what I recognized as a police department badge. He asked me about what I was carrying, and I explained what it was and that I had found it and was taking it home. “Looks suspicious,” he replied to me.
In my experience, policemen always wore uniforms and the only ones who wore regular clothes were detectives on TV investigating murders and other serious crimes – in other words, I was not familiar with the presence of plainclothes officers on street patrols, as had become the practice in New York at the time. I thus became concerned (probably from watching too much television) that these might really be dangerous criminals impersonating police officers and can remember feeling very scared. As they proceeded to question me, I explained that I was taking the item home, to see how it worked and try to fix it. They seemed somewhat dubious until they asked me where I was going to school, and I told them that I went to a science high school that was very well-known. At that point, they finally believed me and told me to go home, which I did (and immediately proceeded to disassemble my newest treasure!).
The reason this otherwise-forgettable incident resurfaced after so many years is that it involved so many of what I now recognize as autistic issues, which would have been completely unknown at the time. First, it involved an unusual and obsessive special interest (discarded electronics). Second, there was atypical, peculiar behavior on my part (looking through garbage). Third, I did not appreciate how my actions might be interpreted by others (particularly the police, who might have thought that I stole the item). Fourth, I was perplexed when approached by the two officers and did not understand what was happening. Fifth, because of my apprehension (which police are trained to sense), they probably suspected that I was not being truthful. Finally, had I not been fortunate to attend a prestigious school, the policemen may well have pursued the matter further, and there is no telling what might have happened then.
When I think back to this experience, I also recall the many stories I have heard over the years about encounters between autistics and law enforcement, many of which did not end as happily as mine did.
Special Interest is a Powerful Motive
A famous case within the autism community involves an adult on the spectrum who had an obsessive interest in trains, particularly the New York City subway system and, at a very early age, learned how to operate a train. He went on to impersonate a conductor, even wearing a uniform, and then took over a train, while the real conductor was distracted, and drove it on its route. He did this many times and was always caught, serving a number of prison sentences as a result. Despite the consequences of his behavior, he was unable to control his compulsion. Such can be the power of an obsessive special interest over an autistic.
I appreciated this story because I too had a comparable interest in the subway system at around age 7, and learned every route in the entire system, to the point of knowing all the rail tracks for those that I rode regularly. I have found that this is a very common interest for autistics who grow up in New York.
What is disturbing, however, is that, after years of ineffective legal representation, one of his attorneys attempted to use Asperger Syndrome as a mitigating factor, and the judge refused to accept it. At the time, there was little public awareness about the autism spectrum, and it was often not taken seriously.
This is certainly an example of the law lagging behind the current state of scientific and, in this case, neuropsychological knowledge. Comparable cases have involved a number of hackers (often on the spectrum) who cannot control their impulses to infiltrate computer systems and networks.
A Tragic But Common Story
One kind of incident that I have heard about on many occasions involves a young person on the autism spectrum being approached by “friends” who invite them to a party or social event, or simply say that they want to be friends with them. As a condition, however, they are asked to deliver a package, the contents of which they need not be concerned with (or else are misrepresented), to a specified location. Needless to say, the package contains illegal drugs or other contraband.
If the autistic is caught by police while delivering the package, they will be arrested and charged with a very serious crime that can result in years of imprisonment. If unable to prove that they had no knowledge of the contents (which is often difficult to do, since there can be a legal presumption of intent), they are usually convicted, or forced to plea-bargain, and sometimes sentenced to a harsh prison term. Many autistics, who cannot understand the social dynamics of the prison environment, let alone deal with them, will not be able to survive such an experience.
What I find remarkable about these stories is that, in nearly every case, the inducement is the prospect of friendship or social inclusion and not of financial gain as would usually be in such a situation. Also, the perpetrators readily identify victims that are susceptible to this, even though they do not know that they are on the autism spectrum and, for that matter, may not have even heard of autism (this would certainly have been the case until recently). Still, they are somehow able to recognize those who can be so exploited.
This is another example of the law lagging behind the current state of knowledge about the autism spectrum, its challenges, and its deficits.
Another Tragic but Common Story
The ubiquitousness of the internet, along with proliferation of websites displaying just about any kind of dubious content, created conditions which have resulted in a disturbing number of autistics being prosecuted for serious crimes. Websites concerning terrorism, explosives, weapons, criminal activities, etc. are now commonplace and can attract the attention of autistics who, for whatever reason, develop an interest in such things, even though they have no intention of doing any actual harm. Some of the most tragic cases, however, involve illicit pornography.
Autistics famously have difficulty finding friendships and social inclusion, let alone romantic and sexual relationships. Consequently, they can easily develop an excessive fascination with pornography that goes beyond the typical interest of early adolescents. Since the advent of the internet made every kind of pornography readily available on one’s computer screen, it can easily be accessed with nothing more than a few keystrokes.
The possession of certain types of pornography, particularly those involving underage subjects, has been made illegal by the U.S. Congress. At the time these laws were passed, pornography was distributed via physical media (print, film, video, etc.) and, as such, its acquisition required deliberate effort on the part of the individual (e.g., physically purchasing or ordering). Distribution over the internet was not common (if it even existed) at the time, so the laws did not take it into account.
Not long afterwards, however, online distribution became the predominant means of consuming pornography, illicit and otherwise. An autistic person with an interest in such could easily view and even download any such material. If they came across an illicit website, they would treat it just as they would a more conventional site. Because such sites are regularly monitored by federal, state, and local law enforcement, the autistic could easily find themselves arrested and their computer seized by police or federal agents in their own homes.
What is tragic about many of these cases is that the autistic who is arrested, and faces very serious charges with extremely severe penalties, was viewing this material strictly out of interest and curiosity; they are neither pedophiles nor predators of any kind (which typical consumers of such often are) and do not present a threat to anyone. They never even realized that they were doing anything wrong, let alone how serious it was.
This is yet another example of the law lagging behind current knowledge about autism. It is also an example of the law needing to catch up with the current state of technology. My understanding is that the latter has long been the case in the history of the law: legislation is often written that does not anticipate subsequent developments. As technology advances, cases arise that were not anticipated at the time of the legislation, and miscarriages of justice can thus occur. This has been true for much of the modern scientific and technological age and is especially pronounced during periods of rapid technical development and change – the current digital, computer, and internet age certainly qualifies as such.
Autistics, Jurisprudence, and the Law
Having no education or other background in the law, my knowledge of and experience with such does not extend much beyond serving on jury duty a few times. During a jury trial, after the two sides present their cases in a courtroom, the judge “charges” the jury with instructions on what the law is, and how they are to deliberate and arrive at a verdict. They are then sent to the jury room for deliberation.
In a criminal case that I served on, a few of the judge’s instructions made an impression on me. Years later, after my autism diagnosis, I reconsidered these in light of my new knowledge. In a criminal proceeding, the standard for convicting a defendant is that the prosecution proves its case “beyond a reasonable doubt.” The judge emphasized that this referred to what a reasonable person could assume, and not mathematical certainty. Having a strong math background, I found this very interesting – it meant that an innocent defendant could be convicted if the evidence was sufficiently convincing. This may work in the typical world, but in the autism community we know that, where autistics are concerned, things are anything but ordinary. Consequently, a case involving an autistic defendant can easily be misunderstood by a jury, which could then render an erroneous verdict.
Another element of the jury charge was that, in evaluating the credibility of a witness giving testimony, their demeanor should be a primary criterion. I was always perplexed by this but, after my diagnosis, became very disturbed by it. Autistics, who often have issues presenting themselves regarding body language, facial expression, and tone of voice can easily give a different impression than they intend to. An autistic person giving testimony in a case can be seriously misinterpreted by the jury and even by the court. If testimony is given by autistic criminal defendants taking the stand on behalf of themselves, the possibilities are nothing short of frightening.
Legislation, the legal system, even the law itself, need to catch up with much of what has been learned about the autism spectrum, its differences, and its challenges.
Karl Wittig, PE, is Advisory Board Chair for Aspies for Social Success (AFSS). Karl may be contacted at firstname.lastname@example.org.