Autism and the Criminal Justice System

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It seems clear that having a mental health condition can fundamentally impact upon a person’s experience with the criminal justice system.

But what if police, lawyers and courts are not aware that the person before them has such a condition?

This is a common situation for those with Autism Spectrum Disorders (ASD) – which are conditions that can negatively impact upon interactions with the justice system at every stage, from dealing with police, to giving instructions and understanding legal advice, to charge negotiations and giving testimony in court.

In a report by the ABC, one lawyer recalled a situation where her client’s actions were significantly influenced by his autism. The client had been arrested and charged with minor offences. A police officer said he would “get his son” – which was meant to convey that he would collect his son. But the client interpreted this as a threat that the officer would harm his son. The misunderstanding caused the interaction to escalate into an altercation.

People with ASD often appear to function effectively, and can possess high IQs, which can even make it difficult for lawyers, courts and even themselves to know that they have the condition in the first place.

It is also common for them to say that they comprehend certain advice, when their comprehension of that advice is different from what was meant to be conveyed. For that reason, it may be prudent for lawyers to ask certain clients to explain the lawyer’s advice back to them – in order to make sure that it is fully understood.

Excluding Police Interviews

In certain situations, records of interview with individuals who have ASD may be excluded from evidence.

Under regulation 24 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) (“the LEPRA”), a vulnerable person includes “persons who have impaired intellectual functioning.”

A person with impaired intellectual functioning is defined as someone with:

(a) a total or partial loss of the person’s mental functions, or

(b) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or

(c) a disorder, illness or disease that affects the person’s thought processes, perceptions of reality, emotions or judgement, or that results in disturbed behaviour.

Divison 3 of the LEPRA imposes a number of requirements for conducting police interviews with such people, including that they have a support person present.

If these requirements are not met, an application can be made to exclude the evidence on the basis that it is illegally or improperly obtained, or that any resulting admissions are unreliable.

A recurring problem faced by those with ASD – and by police and the courts for that matter – is that ASD is not always obvious because, as already stated, sufferers may be capable of giving coherent responses despite misunderstanding the questions.

This is just one example of a mental health situation that the criminal justice system struggles to deal with.

Criminal Responsibility

Another issue is that those with ASD may not intend to commit the offence that they are charged with – which, in many cases, is supposed to remove their legal responsibility.

An example used in the ABC program is that of a man sitting in a park to watch and smile at children because he enjoys it, not understanding how this may look to others. The lawyer appearing in the show suggested that such a man may be suspected of inappropriate conduct and face a restraining order – despite, in his mind, doing nothing wrong.

Fortunately, the courts have attempted to recognise that people with autism and other conditions may lack the necessary intent to commit the crimes that they are charged with.

An example of such a case is Parish v DPP (2007) VSC 494. The facts of that case were that the defendant rubbed his hands on the 15-year-old complainant’s knees as he sat opposite her on a train. He later followed her to the platform and to an escalator, where he rubbed his hands against her back and buttocks. He was charged with common assault and indecent assault. However, the Judge found that the defendant did not realise that he had behaved inappropriately towards the complainant and did not form the required mental state for either offence.

During the proceedings, the court heard that the defendant thought that rubbing girl’s legs was a normal way to get a girlfriend. This was consistent with his record of interview, during which he stated that:

“It wasn’t, it wasn’t sexual. It wasn’t for excitement or sexual. It was more a way of me trying to get to know her, to see if something would come out of it; a relationship or something”


Question: “How many women have you tried to meet by rubbing their legs?”
Answer: “I don’t know. Maybe four.”

The Judge held that the charges were not established in those circumstances. He was, however, very careful to confine his reasons to the circumstances of the case, stating that it was “a most unusual one and should be treated as such.”

At any rate, the case is an example of how courts may deal with autistic defendants – and indeed others who suffer from mental health conditions.

However, the problem remains that the criminal justice system is built on the assumption that defendants comprehend questions, respond to those questions as others would, and understand the morality of their actions – and exceptions designed to accommodate for those suffering from mental health conditions are not always effective in addressing the injustices created by that narrow model.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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