Share Facebook

Twitter

Whatsapp

Mail

Whatsapp Senior legal figures say individuals with autism spectrum disorder can be more vulnerable in the Australian criminal justice system.

Are Australians with autism spectrum disorder (ASD) more vulnerable to adverse outcomes in the criminal justice system? The Law Report learns of situations where ASD behaviours have the potential to impact an individual's experience with the law.

A man sits happily, watching children play in a park.

There are certain characteristics of individuals with ASD that might make them vulnerable to involvement in crime given certain situational disorders.

People nearby become concerned, the police are called and the man eventually finds himself before the courts, facing a paedophile restraining order.

The man has autism spectrum disorder (ASD) and a preoccupation with watching children play, but no evidence of inappropriate interest in children and no criminal record.

His is just one of many examples criminal defence lawyer Trish Johnson can cite as to how people with ASD can find themselves more vulnerable to being caught up in the criminal justice system.

Johnson has spent two decades working with clients who are mentally impaired, live with mental illness, brain injury, intellectual impairment, dementia or autism.

She is among a number of senior figures advocating for greater understanding of and support for ASD within the criminal justice system.

Professor Neil Brewer and Associate Professor Robyn Young, from Adelaide's Flinders University, have co-authored a new book, Crime and Autism Spectrum Disorder: Myths and Mechanisms in which they examine how and why people with ASD commit criminal offences and how that can impact their experiences in the criminal justice system.

In the community

'There are certain characteristics of individuals with ASD that might make them vulnerable to involvement in crime given certain situational disorders,' says professor Brewer.

An inability to judge and react to social cues, for instance, could quickly result in an offence.

'That might lead to them committing a sexual offence because they're just not getting the fact that the other person isn't interested in having that intimate contact,' says Johnson, who works with the Legal Services Commission of South Australia.

Those living with ASD can also be subject to the advances of opportunists, who look to profit from their social naivety in certain situations.

'The individual is not so good at recognising the mental states, the emotions, the intentions of other people and predicting the behaviour of other people,' says Brewer.

'They don't read that situation, they might get bluffed by the other person and so on, so they can be led almost unwittingly, and that could culminate in criminal activity.'

He and Young list examples where credit card fraud and weapons possession charges occurred as a result of an individual with ASD being coerced by a person they took to be a friend.

In custody

Behaviours that might occur as a result of ASD can also impede individuals apprehended for what might otherwise be insignificant offences.

For one of Trish Johnson's clients, that meant misinterpreting a police officer's expression after he had been arrested on minor charges.

'He took literally the phrase from police that they would get his son, meaning "We will go and collect your son, he'll be safe" ... to mean they were going to harm his son. That escalated into a major incident because of his misunderstanding of what was being said.'

Issues can also arise in police custody during interviewing, as a result of a lack of comprehension.

'A common issue would be their ability to understand their rights,' says Johnson.

'One of the rights is their right to remain silent, and I've seen lots of examples where a defendant has had his rights explained, he's been asked, "Do you understand?"

'Similarly to people with intellectual impairment, the automatic response is, "yes, I understand," when more often than not they don't.

'Probably out of a sense of embarrassment, not wanting to admit that, "I don't understand what you just said to me." That can obviously lead to applications to have a record of interview excluded once that matter hits court.'

In the courts

While juries are typically encouraged not to view defendants' physical mannerisms in court as an indicator of guilt, in reality they can have an effect.

Brewer says those with ASD often exhibit behaviours that can be misinterpreted as signs of guilt.

'There is this really strong stereotype that gaze avoidance, shuffling and fidgeting are associated with likely acts of dishonesty, when in fact the data shows they aren't,' he says.

'Yet it turns out that those characteristics are characteristics that will be represented in many individuals with ASD to some degree.'

In prison

Trish Johnson says individuals with ASD are vulnerable and can become isolated when placed in the prison system.

'Often they have to be moved into protection because other prisoners will just target them,' she says.

'They don't have that awareness quite often that their normal behaviour is quite irritating to other prisoners, who may not be as tolerant as other people.

'That can put them at risk of assault or being victimised in other ways by prisoners or being taken advantage of.

'It's a difficult environment for people with ASD. Some struggle extremely.'

Johnson says the resources within the corrections system to provide adequate treatment for inmates with ASD simply don't exist, and individuals' negative experiences in prison can prompt offending behaviour following their release.

What can be done?

Robyn Young says there is a critical need for better understanding of ASD in the community, particularly among police, lawyers and jurors.

Brewer says new research is also needed into ASD and the way it can impact people's experiences in the criminal justice system.

'I think we need a major investment in what I'll call experimental studies, which try to develop a really sophisticated, precise understanding of how the social cognitive deficits that individuals will show, to varying degrees of severity, might play out in terms of the likelihood of them being involved in criminal activity.'

Autism spectrum and the criminal justice system Listen to the full discussion on The Law Report.

Informative, jargon-free stories about law reform, legal education, test cases, miscarriages of justice and legal culture. The Law Report makes the law accessible.