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Autism and
the Courts
Richard McNally, Disabilities Project Newsletter, State
Bar of Michigan, Volume 2, Issue 1, December 2005
For more articles like this
visit
https://www.bridges4kids.org.
There has been a
significant escalation in the number of children being diagnosed
with Autism Spectrum Disorder (ASD) in the United States. ASD
includes classical autism in its various severities and
Asperger’s Syndrome. Fifteen years ago, the incidence of the
condition was estimated to be 1 in 10,000. Currently, the U.S.
Center for Disease Control and Prevention estimates the
incidence to be 1 in 166. Fifteen years ago, few people had
heard of autism; now most people know a family that has been
affected.
The causes of this increase are a matter of debate, but the one
thing that is clear to our courts is that there are many people
with ASD (PASD), now minors, who will be coming into contact
with the judicial system. In the article entitled “Training
Criminal Justice Personnel to Recognize Offenders with
Disabilities” by K. Curry, M. Posluszny, and S. Kraska, it is
mentioned that PASD have up to seven times more contact with law
enforcement during their lifetimes than members of the general
population. ASD also disproportionately affects males.
Although individuals with ASD share several common traits that
complicate their contacts with the justice system, those with
classic autism can be distinguished from those with Asperger’s
Syndrome. Those with autism usually have significant
difficulties with verbal and non-verbal communication, while
those with Asperger’s Syndrome are often quite verbose,
sometimes to the point of seeming to be overbearing. The
expressive language skills of people with Asperger’s Syndrome,
however, may mask the fact that they also have difficulty
understanding language spoken to them. Both groups can require
significant amounts of time to process what is said to them and
respond meaningfully. Both groups often exhibit apparently
bizarre behavior, including lack of eye contact, fascination
with objects, a lack of appreciation of danger, inappropriate
laughing or outbursts, a narrow set of interests, and repetitive
unusual actions. Both groups usually have significant sensory
sensitivities, most frequently of sight, sound, or touch, which
can be overwhelming to them. Finally, both groups are highly
anxious in unfamiliar surroundings or circumstances.
The transition of PASD into adolescence and adulthood presents
special problems. They no longer are viewed sympathetically as
children. While in physical appearance they aren’t kids anymore,
they are still, and always will be, children at one level.
When communicating with PASD, there are several considerations
to keep in mind:
-
Speak slowly and
simply.
-
Avoid slang,
open-ended questions, and phrases with dual meanings.
-
Remember that
that it may take time, often more than a minute, for the person
with ASD to hear, process, and respond.
-
Find an
environment with few sensory distractions.
-
Use very basic
questions requiring a yes or no answer, or multiple-choice
questions to obtain a response upon which one can rely.
-
Consider using a
topic within the person’s narrow set of interests to get to the
relevant topic.
Before
addressing more specific types of judicial contacts, a threshold
issue is that of the ASD person’s competency as a witness as
governed by MRE 601. Due to the communication deficits often
found in persons with classic autism, significant efforts may be
necessary to simply establish a means for the court and the
person with ASD to understand one another. It may require the
assistance of a third party trusted by both the person with ASD
and the court to facilitate communication. It is common for a
person with ASD to be so distracted by the unfamiliarity of the
court environment that meaningful communication is difficult.
When cross-examination is added to the mix, the issue is further
complicated. For example, towards the end of the movie “Rainman,”
even though the proceedings were very informal, the examining
doctor’s questioning of Dustin Hoffman demonstrated that the
thrust of Hoffman’s testimony depended on who got to ask the
last question. Although PASD tend to be scrupulously honest,
their lack of guile makes them malleable witnesses.
PASD as Victims of Crime
Because of their lack of guile, PASD are often the victims of
crime. They are a population vulnerable to bullying and are
usually easy marks for theft. Children with ASD are a child
molester’s dream. They are compliant, sexually unsophisticated,
easily manipulated, and difficult witnesses.
PASD as Criminal Defendants
The behavior of PASD often brings them into contact with the
judicial system as criminal defendants. They often attract
attention to themselves through verbal outbursts in public and
other inappropriate behavior, leading onlookers unfamiliar with
their conditions to conclude that they are intoxicated or
psychotic. A call to the police follows, and an untrained law
enforcement officer may jump to the same conclusion, leading to
an unnecessary escalating confrontation. When agitated by
unfamiliar surroundings or something in the environment that is
offensive only to him, a person with ASD may become
non-compliant, and an arrest, or worse, often results.
As a result of their vulnerability to manipulation, PASD can be
enticed into criminal activity that they would never pursue on
their own. It is common for one or a group of young people on a
lark to provoke a person with ASD to commit an anti-social act
just for the group’s own entertainment. This can lead to a
criminal charge.
Due to their lack of social and sexual sophistication, PASD may
unwittingly compromise themselves in inappropriate sexual
situations, particularly on the Internet.
The overriding theme is that PASD, as a result of a disability
over which they have little control, rather than a criminal
intent on their own part, can find themselves the subjects of a
criminal prosecution. Courts need to be able to make this
critical distinction.
PASD in Divorce and Custody Proceedings
About 80 percent of parents of PASD eventually divorce, due
largely to the personal and financial stress of raising a child
with this disability. See “It’s All In How You Look At It,”
Maureen Bennie, Western Parent, December/January 2002-2003, Vol
vii, No 9. Consequently, young PASD are often caught up in
divorce, although in many cases custody is not contested in that
one parent may abandon the child to the other. When custody is
contested, the court, if it interviews the child, must be
sensitive to the communication issues already discussed. In
addition, in fashioning a parenting schedule, the court must
take into consideration the particular needs of young PASD for
consistency and continuity.
PASD in the Probate Courts
PASD often become the subjects of probate court proceedings such
as guardianships and other protective proceedings. The parents
of minor PASD face a profound choice as the child approaches
adulthood: should the parents apply for legal guardianship
and/or conservatorship over their soon-to-be adult? The thought
that their child may soon be able to make important personal and
financial decisions on his/her own can be frightening. It is
tempting to go to probate court and ask for guardianship or
conservatorship in the interest of protecting the young adult
from potential mistakes. While this is a legitimate concern, it
requires a judicial finding of and tends to perpetuate the idea
that the person with ASD is incompetent to manage his own
affairs (as opposed to being incompetent as a witness, as
discussed above). An alternative is to have the young adult
execute a durable power of attorney granting defined powers to a
responsible adult. This course avoids the stigma of a finding of
incompetence; rather, it presumes the competence of the young
adult. It allows the attorney-in-fact the flexibility to guide,
rather than dictate the decisions in the life of the young
adult, and provides a means for the young adult to gradually
take control over his life as his individual circumstances
warrant. One danger, of course, is that the power of attorney is
revocable at any time. This danger is tempered, however, by the
option of subsequent protective proceedings if the young adult
demonstrates true incompetence. It makes the protective
proceeding the last resort rather than the first.
Richard McNally is an attorney practicing in Flint. He is a
former assistant prosecuting attorney and currently advocates
for individuals and families affected by Autism Spectrum
Disorder. He is a member of the board of directors of the Autism
Society of Michigan and served as president from 2002-2005.
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