Positive Approaches Journal, Volume 9, Issue 1

Volume 9 ► Issue 1 ► 2020

Autism, Sexual Development & the Criminal Justice System

Lawrence A Dubin

Last year I was giving a speech before a few hundred people and I posed this question: Has anyone ever had the experience of waking up when everything seemed to be in order and then something unexpected happened that same day that was life changing? Many people raised their hands expressing the sentiment that life is highly unpredictable and that we all live in a vulnerable state.

On October 7, 2010, my life changed radically. I was driving to the law school where I teach. It was a beautiful fall day. I had just left a restaurant after having a hearty breakfast, feeling that life was as good as it gets. Seemingly, out of nowhere I received a call on my cell phone from an FBI agent informing me that my autistic son' s apartment had been the subject of a search warrant based on the belief that there were illegal images on his computer. The agent advised me to go to his apartment immediately as he was in a terrible emotional state. As I made a U-turn to see my son, I knew that from that day forward, my life would never be the same.

As both a lawyer and a law professor specializing in the area of legal ethics, I have had a lot of faith in the importance of teaching law students about the role lawyers play in searching for justice especially in criminal cases. I believed in our legal system. I knew this system was not perfect, but I also believed it to be the best in the world. My faith in that system was shattered when my son was arrested for a non-contact sexually related federal offense that was committed in the privacy of his apartment - possession of child pornography. What I came to later understand as a result of this harrowing experience is that many people with autism are vulnerable to falling into the criminal justice system without any understanding of why their conduct was criminal. In other words, a criminal act may have technically been committed, but without any intent, in part, due to the characteristics of being on the autism spectrum. Instead of using my son's case to explain how the legal system can misunderstand and mistreat people on the autism spectrum, I am going to use a case study of another case of an autistic man who was charged with a similar offense. I have already written extensively about my own experience:  Caught in the Web of the Criminal Justice System: Autism, Developmental Disabilities, and Sex Offenses co-written with Emily Horowitz, Ph.D¹. The sources for the information provided in this article are supported within the contents of this book.

My objective in writing this article is first, to inform parents and other people who may or may not be professionals who provide important support for people on the autism spectrum and second, to expand the knowledge and understanding of defense lawyers, prosecutors, and judges who operate the criminal justice system and allow them to view the increasing number of men being diagnosed on the autism spectrum who are or have been charged with certain types of sex crimes more compassionately. These people need to receive appropriate mental health services in order to understand the social prohibitions of what they have done. These services may simply be to provide adequate sex education specifically designed for people on the autism spectrum.

When those who operate the criminal justice system misread this population as posing a serious danger to children and others, tragic consequences can burden the lives of individuals with autism including a criminal record, incarceration, and becoming a registered sex offender.

The diagnostic criteria for an autism spectrum disorder focuses on persistent deficits in social communication and social interaction. What is not specifically mentioned is how these major deficits can impede normal sexual development from the moment of birth into adulthood. Those on the autism spectrum have great difficulty making friends or having the verbal skills to socialize with others. Yet the subject of viewing people on the autism spectrum as sexual people who, due to their disability, have roadblocks to learning and experiencing normal sexual development is ignored.

Sex is a difficult subject for parents to discuss with their children, but much more so for parents with children on the spectrum. Yet, these defined deficits for people on the autism spectrum help to explain how such difficulties surrounding healthy sexual development are not their fault. This omission of deficits in normal sexual development as a diagnostic characteristic of autism has furthered the lack of understanding of autistic defendants within the criminal justice system. Just as a blind person should not be treated the same as a person with normal sight in a criminal trespassing case, an autistic person who has been diagnosed as having the characteristics of mind blindness, or theory of mind, (i.e., lacking a natural ability to form an awareness of other people's thoughts) should not be treated the same as a neurotypical person in evaluating certain types of criminal sexual offenses.

What also adds additional difficulty in assessing someone on the autism spectrum in a criminal case, is that they often have normal or even above-normal intelligence. However, they also have a large gap between intelligence and social development which is not clearly visible. Social research establishes that those with ASD typically possess social skills far below their age group yet are normal in their biological sexual development².

Their hormones are age appropriate, but their lack of social skills make having direct and normal sexual experience nearly impossible. In addition, their intellectual development may cause them to appear extremely skilled in computers or highly competent in mathematics as well as in many other areas of their interest.

Some background information is offered to better understand the case study mentioned hereafter. The crime of possessing child pornography is a rabbit hole for many people on the autism spectrum to violate without any intent to do so. This crime is usually committed through a computer which is a common way for autistic people to learn about the world without having to engage in socializing with others. This criminal act is done in the privacy of one's dwelling.

With most crimes, prosecutors are required to prove that the accused not only committed the criminal act, but also had the intent/requisite state of mind to violate the law. The federal law criminalizing unlawful images on a computer in the case study presented does not require any proof of state of mind, only the presence of the illegal images on one's computer. The mind blindness of people with autism masks the illegality of this crime and leads the users to the reasonable assumption that these images aren't illegal otherwise they wouldn't be on the computer. Furthermore, there is no disclaimer informing potential users that viewing these images is a federal criminal act.

In an unbiased study of adolescents in Pennsylvania charged with various sex crimes, it was found, after a thorough clinical evaluation, that 60% of these teens were diagnosed on the autism spectrum. Is there any possible explanation why such a large percentage of those on the autism spectrum might be swept into the criminal justice system³?

Dr. Ami Klin, Head of the Autism Department, Emory University, has stated that people on the higher end of the autism spectrum have, "a disability of social cognition, social learning and communication [...] Adults, even those with high measured intelligence, may, in a practical sense, function like much younger children both emotionally and in their adaptive (life skills) behavior. Expectations for their understanding, skills and abilities are misplaced if development is based on IQ and chronological age⁴."

Gary Mesibov, Ph.D., a respected international expert in autism has stated, "people with ASD often get into trouble without even realizing they have committed an offense. Offenses such as [...] child pornography and stalking [...] would certainly strike most of society as offenses that demand some sort of punishment. This assumption [...] may not take into account the particular issues that challenge an ASD individual⁵."

John Elder Robison, a best-selling author who is on the autism spectrum, states that autistic defendants who are charged in sex crime cases, "needed much more help than punishment. Ignoring that reality is like ignoring the teachers who locked autistic people in basements at school when I was a kid⁵" Experts in autism view the actions of those on the spectrum differently than criminal prosecutors. These experts understand the behavioral impact of ASD on the person's undeveloped sexuality whereas a prosecutor may see that same history as being irrelevant to the crime committed.

Case Study

An adult man in his 30's, who I will refer to as Jeff (not his real name), was charged with the federal crime of possession of child pornography punishable up to ten years in federal prison. Both of his parents are highly trained professionals. Jeff's defense lawyer had represented over sixty men facing similar charges and was aware of their vulnerability and lack of understanding as to the criminal nature of their acts. Jeff was diagnosed with Asperger's when he was 11 years old. As a young child he displayed a lack of social interest in other children and had significant neural developmental impairments. While at times displaying unusual behavior, testing showed he had a gift for understanding mathematics and computers while his nonverbal reasoning, reflecting his social skills, scored a 20-point gap from his verbal reasoning. In other words, his social skills substantially lagged behind his intelligence.

During his adolescence and into adulthood, Jeff's severe social delays and other neurological symptomology led his parents to assume that he showed either no sexual interest or that it was severely delayed. Sex did not seem to be on his mind and his parents felt inadequate to discuss sex with Jeff in a meaningful way. The many therapists who had worked with Jeff also seemed to lack the competence to broach the subject of sex with him. In fact, Jeff had not experienced any type of sexual experiences with other people. Nevertheless, his parents felt optimistic about Jeff's development because his knowledge of computers could lead to future employment opportunities.

On the day that their lives suddenly changed forever, Jeff’s parents remember attending a church service and giving thanks for the progress their son was making. Soon after coming home, there was a knock at the door. Jeff's father opened the door to men dressed in camouflage, wearing helmets and bullet proof vests who barged into his home. The entire family, father, mother, son, and teenage daughter were ordered to drop to their knees and put their hands behind their backs. They grabbed Jeff from his bed and brought him to the living room. They then searched the home. After doing so, they took Jeff back to his room and told him he had child pornography on his computer and obtained a confession from him. Jeff was taken to a police station and later released to his parents the same day without any restrictions being imposed on him.

The family' s entire criminal history consisted of one traffic ticket. Over the next three years, nothing further happened in relation to this event. Thereafter, Jeff was suddenly and unexpectedly notified that he was being arrested for the federal crime of possession of child pornography. Jeff’s parents were shocked that their socially reclusive and neurologically quirky son who had shown no interest in sex would be arrested for a serious federal crime. They were also shocked to learn that such sexually illicit material not only existed on the internet, but that it was easily accessible, free of charge, and without any explicit warnings being given that that possession of these images was a federal felony.

The government clearly didn't see Jeff as a danger to society as no restrictions had been placed on his life during the interim period before charges were brought against him. His parents hoped that the federal prosecutors would understand how a person with autism who lacks the social skills engaged in sexual development could use a computer to view images as a way to learn about his sexuality in the privacy of his home. Experts in autism understand that viewing these images of minors does not indicate a desire to engage in sexual activity with them because that would require a higher level of social skills⁷

Once charged with this crime, Jeff lost his job, was required to wear an ankle bracelet, lost his freedom by being placed in home confinement, and had to report to a pretrial officer on a regular basis. Two more years passed during which time Jeff’s parents paid thousands of dollars in legal fees for legal representation, and expert witness evaluations and report s. Jeff agreed to plead to a reduced charge of transporting obscene materials. Since this criminal conviction would not be for child pornography, there was the reasonable assumption that incarceration and registration as a sex offender would not be punishments for Jeff.

Unfortunately, that assumption was proven wrong. Even though the prosecutors in Jeff's case did not ask incarceration, the federal judge who presided in his case sentenced him to three years in a federal prison that was six-hundred miles from his home. Upon Jeff' s release from prison, he was ordered to register as a sex offender.

How could our legal system allow such a miscarriage of justice to occur? The answer is this: experts in autism have a completely different understanding of individuals with ASD than prosecutors do. Whereas autism experts understand that most men with developmental disabilities, like Jeff, are not dangerous and that they may unwittingly commit criminal acts without any intent to violate the law, prosecutors mistakenly view anyone who possesses these illegal images as being extremely dangerous and likely to hurt children. The data on this issue supports the position of the autism experts.

The good intentions of laws that are enacted to protect vulnerable children cannot be rationalized if the cost is the dehumanization of another vulnerable population - those with developmental disabilities who pose no danger to others. Jeff represents a class of people who are being victimized by the government without any benefit to the public. Jeff' s father said that when he was dropping his son off at the prison where Jeff was to serve his three year sentence, he looked his son in the eyes, told him he loved him, and then drove a few miles away and cried like he had never cried before.

As is true for most parents with a child on the autism spectrum, Jeff's mom and dad were always there to protect their vulnerable son from others, including insensitive teachers, unhelpful therapists, and the bullies who taunted Jeff at school or at work. Leaving his son to be a prisoner at a federal penitentiary six-hundred miles away meant that he could no longer protect Jeff as he had always done. Knowledge of that fact permanently broke his heart.

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