Abstract:
Taking into account an Autism Spectrum Disorder (ASD) diagnosis can be very important in court when making judgements on an individual’s criminal responsibility, the present literature review investigates critically if an Individual with ASD can be held responsible for their criminal actions. To understand how the impairments of individuals with ASD might lead to criminal acts, the paper first explains the deficits and how they affect the individual’s behavior. In a next step, criminal cases involving individuals with ASD are evaluated to reveal how specific deficits might influence the criminal behavior. Based on several findings, the review concludes that impairments seen in ASD might have a strong influence on criminal behavior and therefore several factors have to be taken into account when determining criminal responsibility.
Introduction:
Murrie, Warren, Kristiansson and Dietz (2002) introduced a case of a 27-year-old male offender who meets the diagnostic criteria for ASD. The offender CD was referred to a forensic clinician for evaluation subsequently after a sexual crime with a minor male. Afterwards, several findings led to a diagnosis of ASD in CD. Moreover, mental health reports from CD ?s adulthood show social and non-verbal communication impairments which are distinctive features of ASD (DSM-5 American Psychiatric Association 2013). Furthermore, CD described a history of compulsive masturbation as well as sexual preoccupation, which could be categorized as repetitive and compulsive behavior; a widely reported characteristic in ASD (DSM-5 American Psychiatric Association, 2013). The first time CD got into contact with the legal system was when he had regular sexual contact with a minor male, who lived at CD ?s apartment temporarily. CD had an active sexual relationship with the minor. In addition, the teenager received presents and money from CD. However, when CD stopped giving gifts to the teenage boy, he disappeared from the apartment taking CD ?s stereo with him. CD went to the police station to declare this theft but was immediately arrested because of the sexual engagement with a minor. The fact that he went to the police and freely admitted to his sexual engagement with a minor suggests that the offender was not aware that his actions were illegal and would lead to legal consequences.
Cases like this raise questions: Are people with ASD more prone to criminal behavior? And to what degree can they be held responsible for their criminal acts? Ghaziuddin and Tsai (1991) investigated 132 cases of individuals with ASD and 2.3% had a history of criminal behavior. Since this prevalence is similar to the general population, they concluded that there is no significant association between ASD and committing criminal offenses. only. Nonetheless some crimes can be related to the impairments seen in individuals with ASD (Mouridsen, 2012). Dennis Debbaudt from Autism Risk & Safety Managements (personal communication, January 11, 2018) argues that individuals with ASD will be in contact with the law system to a
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greater extent than individuals of the normal population, not only as offenders but also as victims and witnesses. Therefore, it is important to be aware of the impairments in individuals with ASD when forming a conclusion about criminal responsibility in offenders with ASD.
In consideration of the question regarding criminal responsibility we could take a look at Dutch courts. In Dutch courts expert information is used to assess whether the defendant can be held responsible for the offense, whether the defendant is a risk to society, to find out if the defendant intentionally committed the offense and to evaluate the defendant’s competency to stand trial (De Kogel ; Westgeest, 2016). A person is considered criminally responsible for their offense if he or she is conscious of the fact that his or her action is criminal (De Kogel et al., 2016). Furthermore, actus reus and mens rea are used in the Dutch court to define criminal responsibility (Klaming and Koops, 2012). The impairments seen in individuals with ASD could be a reason for diminished criminal responsibility and thus should be considered as a mitigating factor when sentencing defendants. This fact emphasizes the need of clinical experts in the courtroom, who have knowledge of the disorder. Additionally, the clinical psychologist needs to be able to explain the defendant’s ability to respond to various scenarios which could arise because of the impairments seen in individuals with ASD.
The following literature review will introduce impairments seen in Individuals with ASD and introduce some cases where we can see how the impairments might have influenced the criminal act. Furthermore, I will compare ASD and psychopathy as it seems that there is an overlap of symptoms between the two disorders (Hansman-Wijnands and Hummelen, 2006).
What is ASD?
ASD is a neurodevelopmental disorder with childhood onset (DSM-5 American Psychiatric Association 2013). According to the DSM-5 the key diagnostic features for ASD are “persistent impairment in reciprocal social communication” (criterion A) and “restricted, repetitive patterns of behavior, interests or activities” (criterion B) (DSM-5 American Psychiatric Association, 2013, p.50). Criterion A includes impairments in social-emotional exchange like a deficiency to begin or to react to social communication, as well as impairments in nonverbal communication such as problems with eye contact and facial expressions. Other essential symptoms are impairments in developing, sustaining and comprehending relationships, which become clear in the lack of interest in peers or colleagues and in complications in developing friendships. Criterion B can be further specified into “stereotyped, repetitive motor movements, use of objects or speech” (DSM-5 American Psychiatric Association, 2013, p.50), which may be expressed by lining up objects or grouping furniture. In addition, there are urges to perform extensive routines, acute discomfort caused by minor changes, difficulties with transitions and highly limited and obsessed interests, such as vigorous preoccupation with bizarre objects. Those features are not specific for ASD, they also occur in other psychiatric conditions as well
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as in the normal population. Accordingly, the important part in diagnosing ASD is the clustering of symptoms into three domains: impairments in social reciprocity, impairments in communication and restricted and repetitive interests (Ghaziuddin, 2005). Wing (1976) also called those domains the triad of impairment. The behavioral symptoms of ASD are usually recognized in early childhood, like lack of social interest, unusual social interactions or delayed language development. Odd and repetitive play habits become more obvious at the time of the
ASD in children and adults is approximately 1% of the population. Although there is evidence for an increase in the prevalence of ASD, it remains unclear what causes this increase (Chakrabarti and Fombonne, 2001). The prevalence might be increasing because there is a real increase in prevalence or alternatively might be caused by the broadening of the diagnostic criteria in the DSM-5 (compared to DSM-4), or as a consequence of growing recognition of this disorder in children.
2005), but rather a combination of genetic and environmental factors influence the emergence of ASD. Twin and family studies suggest a large genetic influence on the development of ASD (Ghaziuddin, 2005). DSM 5 mentions a heritability estimate ranging from 37% to above 90%(DSM-5 American Psychiatric Association 2013). Notwithstanding, environmental factors play a role in the cause of ASD as well. Risk factors associated with ASD are for instance higher age of the parents, low birthweight, and fetal exposure to Valproate (DSM-5 American Psychiatric Association 2013). Valproate is a medication which is used for the treatment of epilepsy, which when administered during pregnancy, may increase the risk of ASD in the child. (Christensen, et al., 2013).
Impairments in Individuals with Autism Spectrum Disorder
1. Social Cognition:
Social cognition are cognitive processes which take part in social and interpersonal behavior (Baron-Cohen, Wheelwright, Lawson, Griffin, and Hill, 2002). Individuals with ASD show impairment in reciprocal social communication like taking turns during language exchange (Ghaziuddin, 2005). The social impairments seen in individuals with ASD include deficits in understanding minds and emotions of other people (Baron-Cohen, 1989). Those deficits are also known as Theory of mind (TOM) deficits (Baron-Cohen, 1989). TOM is the capacity to understand other people’s mind and emotional states and it requires essential social skills (Baron-Cohen, 1989). Adults with ASD show no deficiencies in a basic first-order TOM test, but they are unsuccessful with more complicated second-order tests (Golan, Baron-Cohen, and Hill, 2006).
TOM deficits might put individuals with ASD at higher risk to commit sexual crimes
second year of the life (
DSM-5 American Psychiatric Association, 2013)
. The prevalence of
ASD is a multifactorial disorder and thus, there is no single cause of ASD (
Ghaziuddin,
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(Haskins and Silva, 2006). This could be due to their impairments in interpreting social cues. Furthermore, a study by Baron-Cohen and Wheelwright (2004) showed that individuals with ASD have problems in regard to empathy. Empathy is the procedure of emotional understanding, which means understanding emotional states of others as well as reacting emotionally to those states (Hoffman, 2000). Furthermore, empathy helps to respond to anger, distress and further feelings in other individuals (Hoffman, 2000). Those impairments in empathy could therefore lead to the criminal behavior seen in individuals with ASD through the misunderstanding of emotional states of other individuals (Grant, Furlano, Hall ; Kelley, 2017). 2. Executive Functions:
Individuals with ASD show impairments in executive functions (Demetriou et al., 2017) which include various higher order mental processes, such as abstract reasoning, goal directed behavior, inhibition, impulse control and decision making (Lezak, Howieson, Bigler, Tranel, 2012). According to Minshew, Sweeney and Luna (2002) deficits in executive functioning in individuals with ASD are caused by brain abnormalities which are involved in the processing of complex information. Individuals with ASD show also impairments in response inhibition (Takarae, Minshew Luna ; Sweeney, 2004) as well as in working memory (O’Hearn, Asato, Ordaz and Luna, 2008). Working memory is the ability to maintain and manipulate information. The severe distress due to changes in familiar patterns, the problems with transitions and the deficits in social communication in individuals with ASD might result from deficits in executive function (Clare & Woodbury-Smith, 2009).Offenders with ASD display greater impairment in the recognition of fear than non-offending individuals with ASD, but they do not show differences in executive function or theory of mind (Woodbury-Smith, Clare, Holland, Kearns, Staufenberg et al., 2005). Those impairments in recognition of fear might lead to continuing of behavior that bother other individuals and therefore might increase the possibility of a criminal act (Gomez de la Cuesta, 2010).
Brain Abnormalities in Autism
Brain imaging studies help to understand the neurobiological mechanisms regarding ASD (Maximo, Cadena, & Kana, 2014). A study by Nordahl, Lange, Li, Barnett, Lee, Buonocore, et al., 2011) showed increased brain volumes in young individuals with ASD compared to normally developing controls. However, it was shown that older individuals with ASD compared to a normal control group even displayed a decreased volume or no difference (Carper, Moses, Tigue and Courchesne, 2002). Anatomic abnormalities of the cerebellum are commonly seen in individuals with ASD (Pierce and Courchesne, 2001). For instance, post mortem studies found a reduction in cerebellar Purkinje cells in ASD compared to healthy controls (Bailey, Luthert, Dean, Harding, Janota et al., 1998). Other studies observed that during selective attention, cerebellar activation is low (Allen and Courchesne, 2003), whereas another study
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involving a simple motor task elicited high cerebellar activation (Allen, Müller and Courchesne, 2004). Additionally, abnormal activity in the right temporal parietal junction was found in individuals with ASD while observing and imitating the behavior of others (Williams, Waiter, Gilchrist, Perrett, Murray and Whiten, 2006). TOM is linked to the right temporal parietal junction (Williams et al., 2006), which might explain the deficits in TOM seen in ASD. Furthermore, neuroimaging studies found unusual activations in Broca’s and Wernicke’s areas, which might be responsible for the deficits in language processing in ASD (Verhoeven, De Cock, Lagae and Sunaert, 2010). As mentioned before individuals with ASD have deficits in facial processing (DSM-5 American Psychiatric Association, 2013), which fits with the evidence for hypoactivation in the Fusiform gyrus during a task involving facial processing in individuals with ASD (Dalton et al., 2005). A study conducted by Mosconi, Kay, D’cruz, Seidenfeld, Guter, Stanford, and Sweeney (2009) proposed that neurocognitive disruptions in voluntary behavioral control as well as alterations in the frontostriatal system compared to a normal control group might be responsible for the repetitive behavior seen in ASD. The differences in brain anatomy seen in ASD are applicable to the symptoms and features of ASD proposed in the DSM–5 (Mosconi et al., 2009). In regard to defining criminal responsibility in an offender with ASD it is important to be aware of the functioning of ASD brains because it strengthens the case for the accused individual with ASD. In cases in which a judge doubts the restricted criminal responsibility of individuals with ASD, research aimed at finding brain differences might proof the opposite by revealing physical differences between people with ASD and normal Individuals.
Autism vs. Psychopathy
Both disorders show deficits in empathy (Hansman-Wijnands and Hummelen, 2006). Even though both disorders have deficiencies regarding empathy, they differ in the characteristics of those deficiencies (Grant et al., 2017). Psychopathy is described by a lack of empathy, shallow affect and a shortage of remorse or guilt (Hare, 2003). Psychopathic individuals understand what is going on in others, furthermore they have knowledge about which behaviors are inappropriate and they understand the consequences of their actions (Cima, Tonnaer and Hauser, 2010). In contrast to psychopathy, individuals with ASD are not aware of the consequences of their actions (Grant et al., 2017). The deficits in empathy seen in ASD might be caused by impairments in how they understand their behavior to be perceived by others (Murrie et al., 2002). Individuals with ASD might show sympathy in circumstances where they understand the distress in others (Wing, Gould and Gillberg, 2011). Blair (2007) highlighted the importance of amygdala hypoactivity in the lack of empathy seen in
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psychopaths whereas the deficits of empathy seen in individuals with ASD are suggested to follow from hypoactivity of the fusiform gyrus (Dalton et al., 2005).
In contrast to people with ASD, who experience impairments in TOM (Baron-Cohen, 1989), people with psychopathy have been suggested to use their knowledge of TOM to manipulate and influence others (Wahlund and Kristiansson, 2006). Individuals with ASD do not have the intent to hurt people, as this would demand TOM skills, which are impaired in ASD (Frith, 1991). A different study showed that ASD and psychopathy can co-occur, but the social deficits in ASD underlie a different mechanism then the impairments in psychopathy (Rogars, Viding, Blair, Frith and Happe, 2006).
It is important to be aware of those differences when determining criminal responsibility. It was shown that ASD and psychopathy have different profiles of empathy. Individuals with psychopathy are aware of their wrongdoing, whereas individuals with ASD might not understand that their behavior is wrong, as seen in the case of CD. Therefore, the diagnosis of ASD could lead to diminished criminal responsibility.
Even though the distinction between psychopathy and autism is apparent by now, research by Newman and Ghaziuddin (2008) has indicated that some other psychiatric disorders are more commonly found in people with ASD who showed criminal behavior. In their research they inspected cases of individuals with ASD who committed criminal behavior and they found that 29.7% had a definite psychiatric disorder and another 54% had a probable psychiatric disorder. For that reason, they highlight the importance, to make sure that no other psychiatric condition is present in ASD offenders, since the psychiatric condition could be responsible for the criminal behavior seen in ASD offenders.
Criminal Responsibility in the Netherlands
Most of the courts define criminal responsibility in regard to the MNaghten Rules (McSherry, 2003). According to the MNaghten rule, offenders have diminished criminal responsibility when they are unable to understand that their acts are morally and legally wrong, which must be influenced by a mental disorder. The rule focuses on whether an offender knew that the act was morally and legally wrong at the time he or she committed the crime (Aharoni, Funk, Sinnott-Armstrong and Gazzaniga, 2008).
The Netherlands are not applying the M ?Naghten Rule, when defining the criminal responsibility of an offender (Meynen, 2016). According to Dutch law, an offender cannot be held responsible for his or her actions if his or her mental ability was impaired during the crime. This is stated in Article 39 of the Dutch Criminal Code as “Not punishable is he who commits an act which cannot be attributed to him because of poorly developed or pathologically disturbed mental capacities” (Klaming and Koops, 2012, p.8). An individual cannot be held responsible if he has mental impairments which hinder him to act intentionally (Klaming et al.,
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2012). The mental impairments must have been there at the time of the act and must have been responsible for the performance of the crime (Mooij, 2005).
The degree of criminal responsibility in the Netherlands is categorized using a 5-Point Scale ranging from complete responsibility to complete absence of responsibility (Klamning et al., 2012). Expert statements will determine if a defendant had limitations from impairments due to his mental deficits. (Klaming et al., 2012). A criminal act is split into the Actus Reus and Mens Rea (Aharoni et al., 2008). Actus Reus is the physical act, so the action. In contrast, Mens Rea is the mental element, so the intent of an action. In order to be intentional, the offender must be aware that he is performing it. An offender can be held criminally responsible when he has committed the act and also had the intent (Aharoni et al., 2008) According to Klaming et al. (2012) the Dutch law gives more priority to Mens Rea then Actus Reus when defining if an offender is criminally responsible.
The case of CD mentioned in Murrie et al. (2002) shows that he has the Actus Reus because he committed the act, but it can be claimed that he had a lack of Mens Rea because he reported that he had a sexual relationship with a minor when he went to the police to report the theft of his stereo. The fact that he mentioned the sexual relationship during the police interview shows that he was not aware of the fact that this is morally and legally prohibited, so his intend of the action cannot be proven. Therefore, it could be concluded that CD was lacking Mens Rea. As according to Dutch law both Actus Reus and Mens Rea need to be present in order to be held criminally responsible, it can be argued that CD would not be held criminally responsible in a Dutch court. The compulsive and repetitive sexual behavior as well as the social impairment which are features of ASD, and seen in CD, could have led to the lack of understanding that a sexual relationship with minor is morally and legally wrong. Therefore, the criminal act would have been a consequence of the disorder.
What kind of offenses are committed by individuals with ASD?
In order to make a decision about criminal responsibility in individuals with ASD, it may be helpful to know about crimes committed by individuals with ASD and which impairments specifically might have led to the crime. Among a sample of ASD individuals who did commit a crime the following rates of criminal behavior were found: 55% were involved in theft, 25% in sexual misconduct, 25% in violence, 19% in running away, 11% in arson, 6% in blackmail and 3% in other. The totals do not add up to 100% because offenses tended to co-occur in this sample (Kawakami et al., 2012). The paper by Freckelton (2013) announced the following categories of crimes seen in individuals with ASD: arson, computer crimes, stalking, sexual, violence, neglectful offences and dishonesty but generally arson and sexual abuse appear to be the most common offenses in samples of individuals with ASD (Mouridsen, 2012).
The following section will focus on arson offences, sexual offences, violence and
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neglectful offences. For each crime category a case is introduced, and impairments which have might led to the crime are pointed out.
Arson:
Individuals with ASD are more common in the arson group than in other crime groups (Siponmaa, Kristiansson ; Jonson, 2001). Out of 16 people who committed arson 64% where diagnosed with ASD. Arson crimes are commonly associated with ASD (Haskins and Silva, 2006). The article by Barry-Walsh and Mullen (2004) introduced the case of Mr. BD who set fire to a hedge. The defendant was diagnosed with ASD. As child, he showed social impairments and a lack of interest in peers. He showed several features of obsession as well as an urge to perform regular routines. In addition, he showed obsessed interested in flickering flames, despite the fact that he reported to be aware what damage fire can do, he repeated arson to satisfy his interest in flickering flames.
Another case of arson was introduced by Everall and LeCouteur (1990). A 17-year-old boy diagnosed with ASD at age 10 showed a one-year history of fire setting. As in the previous case there were unusual preoccupations, interests, stereotyped behavior and social impairments already present during early childhood. The 17-year-old showed reduced appreciation for the consequences as well as limited empathy for the trouble he caused. Furthermore, he reported that he was pleased looking at the flames (Evereall et al., 1990). Here again the obsessed interest for flickering flames might have caused the criminal behavior.
In both cases it can be argued that the arson was caused by impairments associated with ASD. In both cases the arson followed the repetitive narrow interest in flickering flames, which should be categorized under the previously described Criteria B. The diminished understanding from the 17-year-old boy of the consequences of his fire setting behavior relate to the impairments seen in autism.
Sexual crimes:
The impairments in the interpretation of social cues and the deficits in TOM might be related to the criminal behavior, especially the sexual crimes (Haskins et al., 2006). Freckelton (2013) discusses the case of Mr. Parish, who was diagnosed with ASD. Mr. Parish was accused of touching the calf of a woman on the train. He sat down in front of the woman and situated his hands on the females’ knees. The woman ignored the inappropriate behavior and tried to place her legs in a different position. Mr. Parish went after the woman when the train stopped and touched her again while they were standing on the escalator. The female made it nonverbally clear that she was scared by the behavior, but she did not say anything to Mr. Parish. When Mr. Parish talked to a police officer about the incident he stated it was not for sexual excitement but that he was trying to get in contact with the woman on the train. He explained that the woman did not seem to be bothered by his behavior, so he continued his pursuit. He was not able to recognize the non-verbal cues the woman displayed. Experts evidence suggested that
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Mr. Parish does not know how to develop a normal relationship or friendship. It further proposed that Mr. Paris has impairments in understanding, interpreting and acting in the social environment around him. Initially Mr. Paris was first said to be guilty of incident assault but after the expert evaluation he was no longer found guilty anymore. The reasoning behind the change of verdict was that because the intent of Mr. Paris was not sexual, and his behavior could be traced back to the impairment due to his disorder (Freckelton, 2013). The case of Mr. Parish shows that the inability of individuals with ASD to read a victim’s social cues can lead to sexual crimes. The offender Mr. Parish did not see that his behavior as inappropriate, morally and legally wrong or distressing to the victim. He fulfilled the Actus Reus but lacked the Mens Rea, since he denied sexual intent. The case of Mr. Parish highlights why it is so important to take the diagnosis of ASD into account when defining if an offender is guilty for the crime or not.
The case of CD which was proposed in the introduction also shows the impairments in the social domain. CD showed a deficit in recognizing aspects of social interaction, furthermore he had an impairment in seeing how his behavior is perceived by others (Murrie et al., 2002). Those cases show that the impairments in the social domain of individuals with ASD might have a considerable effect on the sexual offending behavior.
Murrie et al. (2002) describe another case of sexual crime. The case of a 31-year-old male KL diagnosed with ASD. KL was arrested for threatening two females as well as tying them up with a rope in a public restroom. He then cut the rope and let them go. When KL was evaluated after the offense he reported feelings of loneliness. Furthermore, did he reveal a preoccupation with the sexual fantasy of tying up females and cutting into their breast. He also disclosed that he had the rope and the knife which he used during the incident in his car for months already but that he was not planning on acting on his sexual fantasies. After evaluation, he was found criminally responsible but instead of jail time he got probation with the obligation to participate in a sex offender treatment program. KL has not been known to ever re-offended or engage in other criminal behavior. Furthermore, he remained in the treatment program voluntary since he enjoyed the weekly meetings. The case highlights that intense interest and preoccupations, as commonly seen in individuals with ASD (DSM-4), can lead to criminal behavior.
Furthermore, the case highlights the importance of taking into account ASD when defining the sentence. According to Freckelton (2013), the time in jail is more disturbing to individuals with ASD than to healthy offenders. Dennis Debbaudt (personal communication January 11, 2018) argues that individuals with ASD are at risk in the normal jail population as well. The social impairments in individuals with ASD might put them at higher risk of
victimization in jail.
The probation and treatment program seemed like a good alternative for
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KL and it has proven to be successful since KL did not reoffend and he did not engage in other criminal behavior after the program.
Violent and neglectful behavior:
The article by Freckelton (2013) introduced a case of neglectful offending. A man with ASD called Mr. George was accused of manslaughter of his mother. Mr. George was supposed to be responsible to take care of his 87-year-old mother. An ambulance officer found the mother; at the time of the discovery she was coated in bodily fluids like puke, urine and excrements. Additionally, she was very undernourished and she died soon after she was found due to her bad condition. According to psychiatric evidence the deficits in social and emotional reciprocity may be a reason for the decreased concern from Mr. George showed for his mother. When Mr. Georg was asked why his mother was in this terrible condition, he argued that she denied help and she did not want home care because she was ashamed about the condition of their house. The idiosyncratic thinking which is commonly observed in individuals with ASD could be the reason that he literally followed his mother’s commands and might explain his lack of remorse. An expert claimed that because of the ASD he was not able to carry out the responsibility to look after his mother. In consideration of Mr. Georges’ disorder, he received a diminished sentence of imprisonment. The case shows that he had the Actus Reus, but he lacked the Mens Rea. He was not aware of the consequences of his behavior, furthermore he did not have the intent to harm his mother. The neglectful offending was affected by his deficits in social and emotional reciprocity as well as the idiosyncratic thinking.
Discussion
Considering that individuals with ASD are more prone to get in contact with the legal system, not just as offenders but also as victims (Dennis Debbaudt, personal communication, January 11, 2018) it is important to take into account several factors when defining criminal responsibility in individuals with ASD.
The high comorbidity with other psychiatric disorders is one factor which should be considered (Newman, 2008). It is feasible that violent and criminal behavior in individuals with ASD can be influenced by a comorbid mental disorder. Hence, before making a judgement about criminal responsibility, a comorbid psychiatric disorder should be ruled out. This also emphasizes the need for experts who have the knowledge to distinguish between different types or overlapping types of psychological problems.
In all the cases mentioned above the violent and criminal behavior in individuals with ASD could be reasonably explained through the impairments and deficits common for ASD. Cases with offenders with ASD are often dealing with violence, sexual offenses as well as arson (Freckelton ; List, 2009). The deficits in empathy, the poor understanding of other
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mental states, their obsessions and low responsivity could play a big role in offenders with ASD. In all the cases mentioned above the individuals considered their behavior as reasonable and appropriate. The offenders were astonished to learn what kind of reactions their behavior caused, and they had difficulties understanding why they were charged with criminal consequences. This shows that they were not aware of the consequences their actions would have and that they did not have the intent to act criminally. For those reasons the diagnosis of ASD should be taken into account when determining criminal responsibility. Furthermore, offenders often are not aware of the impact their behavior has on the victim. Sexual offences can often be traced back to the social impairments in ASD. A failure to read the victims verbal and non-verbal cues might prompt individuals with ASD to commit sexual offenses. A good example for that is the case of Mr. Parish, who failed to appreciate the non-verbal cues of the victim (Freckelton, 2013).
Equally important are the brain abnormalities seen in individuals with ASD mentioned before. For instance, TOM is associated with the right temporal parietal junction and individuals with ASD show abnormal activation in the right temporal parietal junction during observing and imitating others (Williams et al., 2006). The case of Mr. Parish discussed early clearly shows deficits in TOM. The offendant was not able to read the victims social cues and did not see the distress he was causing. Likewise, the alterations in the frontostriatal system might be the reason for the repetitive behavior in individuals with ASD (Mosconi et al., 2009). The repetitive behavior in individuals with ASD was especially seen in the arsons crimes discussed before. Furthermore, individuals with ASD show abnormal activations in the Broca ?s and Wernickes areas which are responsible for language processing (Verhoeven et al., 2010). The problems in understanding and processing language are again an impairment which can lead to the criminal behavior through misunderstanding. For those reasons it is of significance to take the brain abnormalities into account when determining criminal responsibility in individuals with ASD. The brain activity and structure of people with ASD has been shown to differ significantly from controls. Abnormalities in the brain have been shown to cause abnormal behavior and therefore should be taken into account when determining criminal responsibility.
Another aspect worth considering is the impact jail time would have on individuals with ASD. According to Dennis Debbaudt (personal communication, January 11, 2018) individuals with ASD are at high risk to be victims in jail because of their deficits and impairments. Thus, it appears that time in jail would worsen the condition of individuals with ASD. Considering this when determining criminal responsibility is very important. Furthermore, it highlights the demand of professionals who are educated about ASD in the legal system. The case of KL showed that the treatment program improved the criminal behavior. When determining sentencing for individuals with ASD, community work and specialized treatment programs for individuals with ASD should be considered rather than jail time. This is also supported by
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Murrie et.al. (2002) who highlights the importance of social skills training for individuals with ASD. According to Murrie et al. (2002) social skills training should be provided to individuals with ASD who committed sexual crimes additionally to other treatment programs and supervision. For the future, there should be more educated professionals in the legal system as they play an especially important role in the courtroom, where they could assist the judge in deciding whether an offender with ASD can be held criminally responsible for his crime.
Finally, in regard to the presently available research a number of limitations can be mentioned and improved upon. Firstly, a majority of the available research involves single case studies. Even though these case studies provide valuable insights, each offendant has a unique personal history which might heavily hinder the possibilities of generalizing the findings. A similar limitation can be mentioned in regard to the study by Newman et al. (2008). The study had a total of 37 samples and even though it is not a single case study, the small sample size might not represent sufficient power and could therefore be restrictive and not representative. Another limitation considers the type of comparison used. Both the study by Newman et al. (2008) and the study by Kawakami et al. (2012) are restrictive in the sense that they only compare individuals with ASD to each other. However, none of the studies investigated the differences between criminal cases from individuals with ASD symptoms to criminal cases without ASD symptoms.
Future research should be aimed at direct systematic comparisons of individuals with ASD and regular offenders pertaining to the different most commonly commited crimes by people with ASD, for example arson and sexual crimes. These comparisons could give further insight into the differences between individuals with ASD and other offenders and how their impairments might influence their criminal tendencies. These comparisons could help judges to better understand the influence the impairments can have on their criminal behavior as well as about their criminal intent.
The question whether an individual with ASD can be held responsible for their offenses cannot be answered by a simple yes or no. However, the impairments in individuals with ASD, especially the social impairments and TOM deficits suggest that the diagnosis of ASD should be taken into account when deciding criminal responsibility. The cases should be investigated individually and personal circumstances should be taken into account. The offenders need the Actus Reus and the Mens Rea in order to be held criminally responsible. Individuals with ASD often lack Mens Rea; they do not have the intent to commit a crime and they are often not aware that their actions lead to a criminal act. Offenders with ASD do not have the intent to harm their victims, but because of the deficits in TOM they are unable to understand other people’s mental states.
The knowledge about the typical features of ASD can be beneficial in understanding
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the reasons for a criminal act. Furthermore, this knowledge can be useful in determining sentencing and treatment program. A failure to recognize the disorder in offenders can lead to unsuitable legal judgement as well as inappropriate clinical interventions. Additionally, the treatment and management of imprisoned individuals with ASD will be improved when the diagnosis of ASD is taken into account.