Autism, Video Hearings, and Access to Justice

Autism—a developmental disability that is increasingly diagnosed in the United States—presents challenges for courts working towards video hearing accessibility. As of 2022, 1 in 36 children and 1 in 45 adults in the U.S. have been diagnosed with autism. Contrary to the popular misconception that all autists are intellectually disabled, most are not. This means that the increase in diagnoses may well translate to increased interactions with autists as participants in video hearings.

Given the limited understanding of autism by legal decisionmakers, some courts and non-profits have developed guidelines for judges interacting with autistic litigants and witnesses. Few of these resources address video hearings specifically, but recent studies on videoconferencing with autistic persons shed some light on how to help ensure accessibility for this growing group.

Benefits of Video Hearings

There are several benefits that autistic people may experience with video hearing technology. Non- speaking autistic people may more easily participate through a chat feature than they would in a traditional courtroom setting. Speaking autistic people who experience sensorimotor challenges or reduced mobility may prefer to participate online where they would be spared the physical discomfort of travel.

Communication Challenges within Video Hearings

Autists’ unique communication and sensory needs may complicate their participation in hearings as well. This is, in part, because autists may not use words, facial expressions, and gestures in the same way as neurotypical persons. For example, while an autistic person may feel empathy (sometimes even more than neurotypical persons) they may not express that empathy through the changes in their tone of voice or body language that neurotypical judges and court staff expect. They may, instead, display only minor differences in their facial expressions and detecting small changes in tone or expression can be missed over videoconferencing software, where body language is more difficult to interpret. These communication behaviors can be inaccurately interpreted to indicate a lack of empathy or lack of engagement in a video hearing, leading to disastrous consequences.

The inverse is also true autists may have trouble interpreting others’ communication, which may lead them to respond in a manner not anticipated by allistic court staff and judges. Autistic court participants may have trouble recognizing and understanding conversational conventions and interpret statements more literally than intended.

In addition, autists may experience sensory disturbances that take away their focus and limit their ability to temporally understand the gravitas or content of a video hearing. In a recent study, autists described being distracted by sensory inputs during videoconferencing calls. Similar challenges are likely to exist in video hearings.

So how can courts help ensure that the benefits for people with autism outweigh the challenges? There are a number of strategies to consider. A court could allow participants to turn off their video (when it is not needed) and ensure that the videoconferencing software allows them to adjust their screen color temperature to help reduce distraction. Live captioning could also be used to provide a “back up” source with auditory processing delays. The best strategies, though, are those suited to the communication challenges autistic participants experience in your court.

Here are a few suggestions for how to thoughtfully design and facilitate virtual proceedings with the unique communication needs of people on the autistic spectrum in mind:

First, connect with and listen to the autism community in your area.
Second, train judges and court staff on the communication challenges that autistic court participants are likely to face.
Third, invest in technologies that address some of the challenges autists experience, such as providing live CART captioning to address distractibility.
Fourth, allow people with autism to select the modality through which they are most confident communicating—in person or video. This will not only help ensure that they experience equal access to the courts, but should also reduce the likelihood of miscommunication, thereby facilitating more efficient hearings.

For more detailed information and recommendations, see the curated list of resources below. As noted above, there are not many resources that focus specifically on digital access to justice for autists but there are an increasing number of resources focused on autism and the courts generally.