Caught in the Web of the Criminal Justice System

While the objective of the book is to help criminal defense lawyers better represent their client charged with sex crimes, there are two purposes that define its premise.

The first is an exploration of an understudied issue: the involvement of those with developmental disabilities (e.g., autism, intellectual disability) in the criminal justice system. The book analyzes the impact of sex offense laws on those on the autism spectrum—a population that appears to be disproportionately impacted by convictions for noncontact sex offenses involving computers, for a variety of significant reasons.

The second and broader issue is that these cases help shed light on the draconian and absurd nature of our sex offense legal regime. When our most vulnerable people who are neurologically impacted from birth are placed on “sex offender registries” and given long prison sentences, in spite of evidence that these punishments don’t decrease recidivism or serve any other purpose, it helps reveal the strictly punitive nature of these laws. The laws are based not on evidence but fear—there is virtually no substantive research or data that show they protect children or anyone else. The registry should be abolished, and we hope that considering the impact of these laws on vulnerable populations will help to open the door to the broader question of the basic unfairness to everyone who is labeled as an “active” sex offender after serving their sentence.

Of course, we need to have accountability for sexual wrongdoing; however, laws that permanently ensnare those charged with crimes that involve “sex” and elevate those crimes so that punishment is public and permanent is not the answer.

Autism is a neurological disorder where the brain organizes, processes, and uses information differently from others. Yet such an individual may possess average or even above average intelligence. This type of person presents a challenging case for a prosecutor to evaluate when the potential charges involve illegal images on a computer. Dr. Ami Klin, head of the Autism Center at Emory University Medical Center stated that this neurological condition with high functioning people … “is 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 behavior.”

Professor Emeritus Gary Mesibov, University of North Carolina, and a leading expert in autism, agrees with Dr. Klin. “People with AS often get into trouble without even realizing they have committed an offense such as … child pornography.” During adolescence and into adulthood, they often have limited or nonexistent sexual experience while their hormones are raging as they are physiologically sexual people. They tend to use their computers to learn about matters that interest them and sexual urges get their interest. With tons of pornography available, they feel comfortable and safe in viewing these images in the privacy of their dwelling without having to engage in any normal type of social interaction. They assume if it’s all over the computer, it must be legal—until law enforcement comes to their door with a search warrant.

Autistic people grow up knowing they are different and yet want to fit into the world. They tend to be rule followers, not rule breakers, because conformity to societal norms and mores helps them to fit in and appear normal. They lack the intent to violate the law, yet prosecutors often wear blinders and are resistant to understand how this type of disability makes this person vulnerable to committing a criminal act without any intent to cause harm to anyone. The most just result where the person has no prior criminal record is being diverted from the criminal justice system.

These laws were passed without any supportive empirical evidence after public hysteria from a few horrible high-profile murders of children. The various registration laws were even named after these children. The flawed premise for the passage of these laws as stated in our book is that … “all sex offenders were predatory, uncontrollable, and incurable …” who are hardwired to commit sex crimes against children and who therefore need to be treated differently from any other class of offenders including murderers, bribe-taking politicians, arsonists, drunk drivers, and even terrorists. In fact, empirical evidence establishes that people convicted of sex crimes have lower rates of recidivism when compared to other classes of crimes.

The real impact of sex offender laws is to punish, humiliate, and demonize this class of convicted people by publicly disclosing personal information about them; challenging them to find living quarters at significant distances from schools, playgrounds, etc.; making employment opportunities very limited; and subjecting them to further criminal charges solely for being in violation of these laws.

In the recent federal Sixth Circuit case of Doe v. Snyder, the panel stated that these laws are punitive in nature, make recidivism more likely to occur, and impose restrictions on registrants that “far exceed even a generous assessment of their salutary effects.”

So what alternative is proposed for the end of laws requiring people convicted of sex crimes to register? The answer is simple. The sex offense registry is not only pointless but harmful and we never had mass sex offense registries until the mid-1990s and these laws have been a total disaster that is a blemish on the criminal justice system. Treat this class of crime like any other category of crime. Have laws that sanction a reasonable period of confinement commensurate with the type of crime, and examine the background and criminal history of the accused. Support all people convicted of any crime who have paid their debt to society to be able to rehabilitate themselves in moving forward in their lives.

There are mental health and specialty courts throughout the country that deal with issues pertaining to mental illness, addiction, and other conditions like PTSD for veterans. These courts provide care and concern for people in need of mental health treatment to get the help they need without having to be processed by the criminal justice system. To my knowledge there is no such court that specifically focuses on the needs for people with an autism spectrum disorder (ASD).

Often mentioned in research is that most ASD people are law-abiding people because it is their way to better fit into society while trying not to appear different from others. Some experts have stated it this way … “they tend to be rule followers rather than rule breakers.” Yet research also shows that this group is more likely to become involved in the criminal justice system than those without this developmental disability. Often crimes committed by high-functioning autistic men stem from their social naiveté and lack of awareness in the existence or application of certain laws, e.g., stalking, possession of illegal images on a computer, unwanted touching, etc. In addition, people on the autism spectrum generally are not viewed as sexual people in growing up by parents and mental health workers because of a myriad of other more-pressing problems that create the impression that they are not interested in sex. Furthermore, the need for sex education programs specifically designed for ASD people do not exist.

In many cases where criminal charges are brought against ASD defendants, a forensic expert in autism utilized by the defense will delve into the person’s personal history to help explain the relationship between his developmental disability and the crime charged. A report will be sent to a prosecutor whose mindset will see this report as an excuse for committing the crime. The consequence of this gap between expert and prosecutor is that a defendant who poses no danger to society and who didn’t understand the consequences of his actions will be sent to prison, acquire a criminal conviction, and serve probation while becoming a registered sex offender.

A mental health court specifically created to understand the relationship of the neurological component of the ASD population with the charged crime is greatly needed to protect this vulnerable group of people from being labeled as criminals. In most of these cases, education and therapy will make recidivism an unlikely outcome.

Would the creation of a special court for ASD defendants be a good idea with knowledgeable judges, prosecutors, and defense lawyers working together to help the person in question? My answer is a definitive, “yes.”