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Autism defences and knowledge of criminal law

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xenon13
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08 Mar 2021, 8:31 pm

I have noticed a great deal of opposition in the autistic communities to "autism defences" in criminal cases.

I find that this is the result of a misapprehension of what criminal law really is... and that it is required not only evidence of the act but also the guilty mind. As such, the mind of the accused becomes essential in assessing that last factor. It is also relevant in explaining behaviour that may otherwise be deemed as "not realistic" and hence discrediting of the testimony of an accused, and also relevant as to the fact that triers of fact are allowed to hold autistic traits against a witness...

Criminal offences and the rules around them normally are based on the assumption that everyone is neurotypical. That is, the inferences people may draw or not draw, as shortcuts because it is difficult to read the mind of a person, and yet findings as to the state of mind are essential.

The rules of the court likewise are for the neurotypical... autistic people are more likely, in cross-examination, to ask why the question is being asked... fatal error!

I'll leave it at that for now... oh, I will add... any autistic person with a criminal case absolutely has to have a lawyer who knows about autism... failing this may be... very bad.



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08 Mar 2021, 9:49 pm

Welcome back!

How is that Dorner statue coming?  After 8 years, there should at least be some preliminary sketches.

Has June 4 been made a national holiday yet?


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Dear_one
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08 Mar 2021, 10:53 pm

xenon13 wrote:
I have noticed a great deal of opposition in the autistic communities to "autism defences" in criminal cases.

I find that this is the result of a misapprehension of what criminal law really is... and that it is required not only evidence of the act but also the guilty mind. As such, the mind of the accused becomes essential in assessing that last factor. It is also relevant in explaining behaviour that may otherwise be deemed as "not realistic" and hence discrediting of the testimony of an accused, and also relevant as to the fact that triers of fact are allowed to hold autistic traits against a witness...

Criminal offences and the rules around them normally are based on the assumption that everyone is neurotypical. That is, the inferences people may draw or not draw, as shortcuts because it is difficult to read the mind of a person, and yet findings as to the state of mind are essential.

The rules of the court likewise are for the neurotypical... autistic people are more likely, in cross-examination, to ask why the question is being asked... fatal error!

I'll leave it at that for now... oh, I will add... any autistic person with a criminal case absolutely has to have a lawyer who knows about autism... failing this may be... very bad.


Given the wide range of Autism, and the inability of NTs to relate to any of it, an AS defence seems unlikely to succeed for the defendant, while risking having Autism leading automatically to criminal suspicions.



Joe90
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09 Mar 2021, 3:45 am

If NTs have empathy abilities for those who haven't experienced the same as them, how come they are unable to relate to autistics? It's a question that has plagued me for years. :scratch:


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Dear_one
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09 Mar 2021, 5:39 am

Joe90 wrote:
If NTs have empathy abilities for those who haven't experienced the same as them, how come they are unable to relate to autistics? It's a question that has plagued me for years. :scratch:


For one example, if an Aspie is complaining about a noise, it may well be genuinely overwhelming, but if an NT is complaining about it, they are more likely to be playing a status game with fake distress.



funeralxempire
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09 Mar 2021, 12:01 pm

Dear_one wrote:
Joe90 wrote:
If NTs have empathy abilities for those who haven't experienced the same as them, how come they are unable to relate to autistics? It's a question that has plagued me for years. :scratch:


For one example, if an Aspie is complaining about a noise, it may well be genuinely overwhelming, but if an NT is complaining about it, they are more likely to be playing a status game with fake distress.


NTs don't ever find sounds unbearably annoying? :?



Dear_one
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09 Mar 2021, 12:11 pm

[quote="funeralxempire"
NTs don't ever find sounds unbearably annoying? :?[/quote]
When they do, others agree with them.



xenon13
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09 Mar 2021, 11:34 pm

Dear_one wrote:
xenon13 wrote:
I have noticed a great deal of opposition in the autistic communities to "autism defences" in criminal cases.

I find that this is the result of a misapprehension of what criminal law really is... and that it is required not only evidence of the act but also the guilty mind. As such, the mind of the accused becomes essential in assessing that last factor. It is also relevant in explaining behaviour that may otherwise be deemed as "not realistic" and hence discrediting of the testimony of an accused, and also relevant as to the fact that triers of fact are allowed to hold autistic traits against a witness...

Criminal offences and the rules around them normally are based on the assumption that everyone is neurotypical. That is, the inferences people may draw or not draw, as shortcuts because it is difficult to read the mind of a person, and yet findings as to the state of mind are essential.

The rules of the court likewise are for the neurotypical... autistic people are more likely, in cross-examination, to ask why the question is being asked... fatal error!

I'll leave it at that for now... oh, I will add... any autistic person with a criminal case absolutely has to have a lawyer who knows about autism... failing this may be... very bad.


Given the wide range of Autism, and the inability of NTs to relate to any of it, an AS defence seems unlikely to succeed for the defendant, while risking having Autism leading automatically to criminal suspicions.


That is my own impression, looking through Canadian case law, and also based upon what I have seen... In reality, we are seen as badly behaved people! There was that case where the Nova Scotia Court of Appeal reversed a decision because the jury were told to disregard the expert witness on autism because it was supposedly irrelevant to self defence... well, they had a trial by judge alone, and the judge attacked the credibility of the accused based on... autistic characteristics! Oh, he did not know that, because they never do... but that's what happened. The Court of Appeal affirmed the conviction.



xenon13
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09 Mar 2021, 11:37 pm

Autistic people are normally screwed by the criminal justice system.

There's this famous wrongful conviction case in Canada - Paul Guy Morin.

One juror admitted that for Trial 2 (the first acquittal was reversed because the judge tried too hard to bring justice in this case), she voted for guilt because he did not look them in the eye!

I do not think he was diagnosed autistic but it is possible and that is a characteristic connected with autism.

Mentioning it and trying to have accommodated may give us a fighting chance...



xenon13
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09 Mar 2021, 11:47 pm

In 1948, this was said about credibility:

"The Judge is not given a divine insight into the hearts and minds of the witnesses appearing before him. Justice does not descend automatically upon the best actor in the witness-box. The most satisfactory judicial test of truth lies in its harmony or lack of harmony with the preponderance of probabilities disclosed by the facts and circumstances in the conditions of the particular case."

Obviously, if it is about "the best actor in the witness box", we are often screwed on that basis, and that still is allowed to be one factor in assessing credibility... but this talk of "the harmony with... the preponderance of probabilities disclosed by the facts and conditions"... that invariably involves asking oneself: would a person in situation X do Y... and that is based on "common sense" and "experience"... whose "common sense" and "experience"?... certainly NOT thise of autistic persons. So there is a clear difficulty there...



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11 Mar 2021, 3:49 am

Laws are too Black and white.

Consult the Kohlberg scale.