Article arguing for more leniency for first time sex offenders with autism

[cara susanna]

When autistic people commit sexual crimes

Many first-time sex offenders on the spectrum may not understand the laws they break. How should their crimes be treated?

www.spectrumnews.org

What do you all think of this? I'm wondering if there's actually any research on the idea that people with autism "don't know any better," aside from the usual standards like competency and NBGI.

One thing that stood out to me was the guy featured in the article saying that he didn't realize that the children in child pornography were being abused because of his autism. I've seen other internet sex offenders say the same thing, so I'm not sure that's unique to autism?

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[msgeorgeeliot]

When autistic people commit sexual crimes

Many first-time sex offenders on the spectrum may not understand the laws they break. How should their crimes be treated?

www.spectrumnews.org

What do you all think of this? I'm wondering if there's actually any research on the idea that people with autism "don't know any better," aside from the usual standards like competency and NBGI.

One thing that stood out to me was the guy featured in the article saying that he didn't realize that the children in child pornography were being abused because of his autism. I've seen other internet sex offenders say the same thing, so I'm not sure that's unique to autism?

It’s a thought-provoking piece, and I share your curiosity about actual research vs sympathetic anecdotes.

Beyond the clinical context, I’m very cynical about legal precedent. An ignorance defense would no doubt be co-opted by everyday offenders who suddenly claim to be “on the spectrum.” It’s also easy to imagine incels using an ignorance defense in court, eg, “wah-wah, I’m profoundly socially impoverished because women are mean and reject me, so given my lack of insight, should I really be held responsible for my socially aberrant choices?”

Unless competency is a real issue, I think that people need to take responsibility for the basic legal appropriateness of their behavior.

I would add two things to @cara susanna ’s great post:

1) one can have autism and be a non-ignorant pedophile at the same time

2) the guy featured in the article has a doctorate in psychology. Maybe it’s just me, but I am having a hard time imagining how one could maintain that level of ignorance about illegal pornography and related reporting mandates in the course of grad school and clinical practica

 

[psych.meout]

When autistic people commit sexual crimes

Many first-time sex offenders on the spectrum may not understand the laws they break. How should their crimes be treated?

www.spectrumnews.org

What do you all think of this? I'm wondering if there's actually any research on the idea that people with autism "don't know any better," aside from the usual standards like competency and NBGI.

One thing that stood out to me was the guy featured in the article saying that he didn't realize that the children in child pornography were being abused because of his autism. I've seen other internet sex offenders say the same thing, so I'm not sure that's unique to autism?

But the point about competency and NGRI is that the defendant couldn't comprehend at the time (e.g., psychosis) or ever (e.g., ID) that something was illegal, not that something is morally wrong, that they couldn't take the perspective of another person being harmed (e.g., due to ASD), or that they simply didn't know that something was illegal.

Dubin, the man with autism in the article, has a doctorate in psychology.

...it had never occurred to him that looking at naked pictures of minors is against the law: “I had no concept of how something I was doing in the privacy of my home without interacting with anyone could be breaking the law,” he says.

Sure, he may have impairments in his social and communication functioning, but you can't honestly believe that he didn't know that possession of child pornography was illegal or that he wasn't competent to understand this. It's completely self-serving.

 

[psych.meout]

It’s a thought-provoking piece, and I share your curiosity about actual research vs sympathetic anecdotes.

Beyond the clinical context, I’m very cynical about legal precedent. An ignorance defense would no doubt be co-opted by everyday offenders who suddenly claim to be “on the spectrum.” It’s also easy to imagine incels using an ignorance defense in court, eg, “wah-wah, I’m profoundly socially impoverished because women are mean and reject me, so given my lack of insight, should I really be held responsible for my socially aberrant choices?”

Unless competency is a real issue, I think that people need to take responsibility for the basic legal appropriateness of their behavior.

I would add two things to @cara susanna ’s great post:

1) one can have autism and be a non-ignorant pedophile at the same time

2) the guy featured in the article has a doctorate in psychology. Maybe it’s just me, but I am having a hard time imagining how one could maintain that level of ignorance about illegal pornography and related reporting mandates in the course of grad school and clinical practica

It doesn't say what field of psychology his doctorate is in, it might not be a licensable one, so mandatory reporter stuff and other ethical issues may not be part of the curriculum.

Regardless, there's no way that he didn't know possession of child pornography is illegal. It's incredibly self-serving.

 

[psychRA]

Is there any reason to believe that the impact on the victim is somehow lessened because the perpetrator has autism?

I don't see why one specific diagnosis warrants an entirely separate approach from the legal system. In most states, we already have a mechanism for determining legal culpability in cases of severe mental illness. In general the outcome is to remand that person to treatment, sometimes for longer than that person would have spent in jail.

 

[psych.meout]

Is there any reason to believe that the impact on the victim is somehow lessened because the perpetrator has autism?

I don't see why one specific diagnosis warrants an entirely separate approach from the legal system. In most states, we already have a mechanism for determining legal culpability in cases of severe mental illness. In general the outcome is to remand that person to treatment, sometimes for longer than that person would have spent in jail.

I completely agree, and the ramifications of it are also important. This guy has a doctorate in psychology and he's arguing that his ASD means that he could not comprehend how looking at child pornography in his home was illegal. Clearly, he's very high functioning if he can earn a doctorate, so what does it mean for the rights and autonomy of all people with ASD if the highest functioning among them can't understand simple legalities like this? Are they then legally incompetent for other circumstances, like signing contracts, control of their assets, etc.?

I'm no fan of the American criminal justice system, but let's not make stuff up and ignore science and reason, because it's convenient.

 

[mypointlesspov]

It doesn't say what field of psychology his doctorate is in, it might not be a licensable one, so mandatory reporter stuff and other ethical issues may not be part of the curriculum.

Regardless, there's no way that he didn't know possession of child pornography is illegal. It's incredibly self-serving.

I googled him. He has a PsyD from MSP. There's no way he didnt know about mandatory reporting. Granted, it's not a great school, but I can't imagine that they'd not address mandatory reporting.

 

[psych.meout]

I googled him. He has a PsyD from MSP. There's no way he didnt know about mandatory reporting. Granted, it's not a great school, but I can't imagine that they'd not address mandatory reporting.

Thanks for that. He's even more full of it than before.

 

[Ollie123]

The exact boundaries around social deficits in autism is intellectually interesting and clinically important. From a practican standpoint, this seems a bunch of nonsense. That said, lawyers can and will say truly asinine things they know have zero hope of working and would have hugely negative consequences if they did.

The whole thing seems silly as there are already mechanisms in place. Not competent to stand trial? We have a protocol in place for that. First-time offendor who genuinely didn't know better? Judges are absolutely able to take that into consideration at sentencing in many cases. Autism has better "marketing" than other disorders, but I see literally no reason why it should be its own category beyond advocates doing what advocates do. Forgeg incels, this opens doors for full-on ASPD and all kinds of other things we definitely do not want to open the door to. Which is why the current system is in place

I will be the first to say our criminal justice system is truly, horribly flawed. In fact, I think it is so bad we probably would be best served by scrapping it and starting over from scratch (not that i think this will happen). We need major reform that I think could help address this issue, but what the article seems to push for is just downright silly. Autism diagnosis has FAR from "beyond a reasonable doubt" level of reliability in many cases. This is further compounded by the creation of "spectrum" - which is good scientifically and clinically but NOT something our court system is set up to handle. Does severe autism get you a pass, but mild autism just get a sentence reduction? Lack of mental health services in prison is an issue. Plenty of profoundly ignorant, socially immature and otherwise sympathetic people can be found in prisons who may be just as deserving of leniency. Problems with registries, criminal records and employment, etc. extend in many directions.

There are just too many issues here...

 

[ExploringOptions]

Wow. This article made me angry. I don’t see why ASD should be grounds for someone not facing the same repercussions as someone without it for sex crimes. As others have mentioned, the man has a doctorate. He clearly possesses intelligence and reasoning skills. This is a slippery slope imo. Anyone could now claim they didn't know children are harmed in making child porn. There will pop up a renegade industry of psychologists willing to make the diagnosis of ASD for a price. Most likely those who went to for-profit PsyD programs and have a ton of debt and low job prospects.
I do agree sex education should be mandated for those with mental challenges. That’s about all I agreed with in this article.
I don’t care if his parents, therapist and attorney think he isn’t a threat. Tell that to the child victims he viewed.
Honestly, this whole article made me angry and sad ASD was being used as an excuse to get someone out of the consequences of their actions. My child is on the spectrum, and as their parent it is my job to teach them about sex and what’s appropriate. If no one taught him, that’s on them. You don’t get a do-over and get to say, “oops we will do it now. All good.”

 

[deleted480308]

I don’t care if someone knows it’s illegal or understands why

 

[Goro]

When autistic people commit sexual crimes

Many first-time sex offenders on the spectrum may not understand the laws they break. How should their crimes be treated?

www.spectrumnews.org

What do you all think of this? I'm wondering if there's actually any research on the idea that people with autism "don't know any better," aside from the usual standards like competency and NBGI.

One thing that stood out to me was the guy featured in the article saying that he didn't realize that the children in child pornography were being abused because of his autism. I've seen other internet sex offenders say the same thing, so I'm not sure that's unique to autism?

I don't care if someone knows what they're doing or not. If they're a danger to others, they should be in jail or institutionalized.

 

[StellaB]

I’m not going to weigh in on the article other than to say that anecdotally, my sex offender cases have had a higher proportion of autistic perpetrators than population base rate.

As a forensic psychologist though I want to clarify some points that commenters appear to be conflating:

Competence to stand trial has no bearing on criminal responsibility. If someone is permanently incompetent, they may be civilly committed rather than charged, but unless the autistic defendant also has ID, that would be very rare. Once determined competent, the trial process would continue as normal.

Second, NGRI is a very high burden of proof in most of the states that have such a defense. What is more likely in a case like this might be a diminished capacity defense that does not reach all the way to NGRI, which is really better suited to remitting disorders like psychosis and bipolar. If the qualifying disorder is not remitting, it’s hard to see how the defendant would ever qualify for release.

The effect on the victim is not the only consideration in criminal defense. Otherwise we wouldn’t have first degree murder vs. second degree murder vs. voluntary manslaughter vs. involuntary manslaughter. All entail a dead victim, with very different penalty outcomes.

NGRI and diminished capacity defenses don’t always require the defense to prove beyond a reasonable doubt. Sometimes (eg in Colorado and a few other states) the burden is on the prosecution to prove the defendant was not insane.

 

[BuckeyeLove]

Second, NGRI is a very high burden of proof in most of the states that have such a defense

Wait.....Preponderance of the evidence (the 3 states I'm licensed in utilize such) is a high burden of proof? The only time I've ever gotten any pushback on a sanity opinion where I've opined insane has been on a federal case, where it’s clear and convincing, and they still can't get over Hinckley. Most state prosecutors I’ve noticed get nervous with mental health cases, probably cause 4 out of 5 times they don’t know the difference between fitness and sanity.

 

[StellaB]

Wait.....Preponderance of the evidence (the 3 states I'm licensed in utilize such) is a high burden of proof? The only time I've ever gotten any pushback on a sanity opinion where I've opined insane has been on a federal case, where it’s clear and convincing, and they still can't get over Hinckley. Most state prosecutors I’ve noticed get nervous with mental health cases, probably cause 4 out of 5 times they don’t know the difference between fitness and sanity.

I apologize, I didn’t mean to imply the evidentiary standard was too high, but that the vast majority of these defenses are unsuccessful at trial. Where I am, nearly all successful NGRI defenses are resolved via plea bargain because juries really do not like this defense. As an interesting aside, a recent internal study by the state hospital found that fully 50% of the preadjudication forensic evaluations in these cases did not utilize the correct statute - either they used one from another state or one the evaluator seems to have made up themself.

 

[cara susanna]

I’m not going to weigh in on the article other than to say that anecdotally, my sex offender cases have had a higher proportion of autistic perpetrators than population base rate.

As a forensic psychologist though I want to clarify some points that commenters appear to be conflating:

Competence to stand trial has no bearing on criminal responsibility. If someone is permanently incompetent, they may be civilly committed rather than charged, but unless the autistic defendant also has ID, that would be very rare. Once determined competent, the trial process would continue as normal.

Second, NGRI is a very high burden of proof in most of the states that have such a defense. What is more likely in a case like this might be a diminished capacity defense that does not reach all the way to NGRI, which is really better suited to remitting disorders like psychosis and bipolar. If the qualifying disorder is not remitting, it’s hard to see how the defendant would ever qualify for release.

The effect on the victim is not the only consideration in criminal defense. Otherwise we wouldn’t have first degree murder vs. second degree murder vs. voluntary manslaughter vs. involuntary manslaughter. All entail a dead victim, with very different penalty outcomes.

NGRI and diminished capacity defenses don’t always require the defense to prove beyond a reasonable doubt. Sometimes (eg in Colorado and a few other states) the burden is on the prosecution to prove the defendant was not insane.

Thank you for clarifying--that is really helpful to know, and I was hoping that people with forensic backgrounds would weigh in. I would be super interested in hearing your thoughts on the article itself, if you're willing to share. No pressure though. 🙂

 

[StellaB]

Thank you for clarifying--that is really helpful to know, and I was hoping that people with forensic backgrounds would weigh in. I would be super interested in hearing your thoughts on the article itself, if you're willing to share. No pressure though. 🙂

I do get the sense, again - totally anecdotally - that individuals on the spectrum are more likely to sexually offend against children or look at child pornography, for many of the reasons discussed in the article, such as feeling they relate better to children/adolescents and having a poor understanding of nuanced social situations. Like other commenters, I have a hard time buying that someone with a PhD in psychology "didn't know the rules" about this. But in general, I do actually think that it would make sense to be more lenient in first offenses in many cases (not just for individuals on the spectrum).
There is little to no evidence that registration policies protect victims. And, contrary to popular opinion, a lot of first-time sexual offenders do not go on to offend again (specifics of the type of offense, age of victim, relationship to the victim, proximity to potential future victims all need to be taken into account here, among other things). If I could select one group for us to have compassion for and immediately stop treating as sex offenders, though, it's homeless people with SMI who are caught urinating or masturbating in public. I cannot tell you how many of those cases I have seen - and the subsequent charges over and over again for failing to register as sex offenders because they are too disoriented or floridly psychotic in the community to remember to do that. It's honestly ridiculous. Ok, I'm gonna get off my soap box for now.

 

[PsyDr]

All depends on your theory of justice. The only way autism matters is the rehabilitative theory, and only some states use that.

 

[StellaB]

All depends on your theory of justice. The only way autism matters is the rehabilitative theory, and only some states use that.

I disagree, even under a retributive theory, the criminal intent can still be an important factor in establishing the facts of a case and the specifics of the crime. Having naked pictures of children isn’t even necessarily a crime (most families have the toddlers-in-the-bathtub variety, for example.) Whether or not something is lascivious can depend upon the intent (read: mindset) of the alleged perpetrator, regardless of the theory of justice/punishment you ascribe to. And our system is based on a combination of multiple theories anyway.

 

[erg923]

Maybe I am missing some empathy here, but Didn't Dave Chappelle do this years ago in a routine..."I didn't know i couldnt do that..."

I don't know about you guys, but every year we meet with the family accountant and every year he reminds me ignorance of the (Tax) law is not a justification for breaking it. Although, I still can't really understand why buying a house plant for my home office is tax deductible.

Now... aren't taxes more complicated than child pornography? I would like to think: YES!!!

Much like disability, the level of global impairment(s) is the possible mitigating factor here... NOT the diagnosis/diagnoses. Otherwise, its just insulting on both sides of the isle.

Regardless, state/legally sanctioned restrictions on the offending person's level of freedom and mobility should still be very much on the table to prevent further victimization. I hope we would at least all agree on that?

 

[StellaB]

Much like disability, the level of global impairment(s) is the possible mitigating factor here... NOT the diagnosis/diagnoses. Otherwise, its just insulting on both sides of the isle.

Regardless, state/legally sanctioned restrictions on the offending person's level of freedom and mobility should still be very much on the table to prevent further victimization. I hope we would at least all agree on that?

I agree. The issue with SO registration is less one of restricting someone’s rights, and more of restricting someone’s rights with no actual benefit to potential victims. Here in CA, the law was recently changed to create a tiered system of registrations, and the police/sheriffs dept’s were big supporters. The reason is that when you treat too many crimes as sex offenses (eg urinating in public), and require lifelong registration for such perpetrators, with no distinguishing difference in registration from, say, a serial stranger rapist, you end up with a list that is too large and too vague to be of any use to law enforcement.

But as to the point about global deficits, I agree completely. There does not need to be a new law regarding people on the spectrum or any other specific diagnosis. What one might advocate for, if so inclined, would be for greater judicial/atty awareness of how the deficits of being on the spectrum might be used in court as mitigating factors in cases involving socially nuanced situations. It’s still an uphill battle as a defense strategy, and probably more effective for trying to get a better plea bargain than risking the legal theory at trial, in my opinion.

 

[futureapppsy2]

Weighing in a bit late here... I have a lot of friends who are autistic self-advocates/activists, and they generally hate this argument. Not only does it reinforce the (generally unfounded) stereotype that people with autism are "dangerous", but it also negates their frequent experiences of abuse and exploitation, including sexual abuse. I also agree with everyone else here who said that it's complete nonsense that someone with a doctorate in psychology wouldn't know that child pornography is very illegal and that they shouldn't be looking at it. I do think there are some areas where sex offending laws go beyond the rational intent (e.g., charging a 16 or 17 year old for taking naked selfies), but this doesn't even seem to be one of those, IMO.

 

[futureapppsy2]

Here's another article on this topic:

Downloading a Nightmare

When autism, child pornography and the courts collide.

www.themarshallproject.org

 

[StellaB]

I am quite sympathetic to the concern that this argument will promote the idea that autistic individuals are "dangerous." An example of the type of thing I have seen is an autistic kid who, at around 15 years old, was looking at regular porn, came across child porn, and then got this idea that he was going to "investigate" the situation by looking for more. He wasn't ever charged with anything - he eventually got a call from a federal investigator that terrified him out of using any type of computer for years after. It was a really sad situation, even without legal ramifications. Had he been charged though, I think a good defense attorney would want to explore the argument that he did not have the ability to independently come to the conclusion that what he was doing was wrong. After all, in his mind he was trying to look for clues in the pictures as to who the kids might be. He lacked the theory of mind requisite to realize that other people would not automatically know his intentions, nor did he have the maturity or courage to tell his religious parents that he had been looking at porn, so he didn't ask an adult for help.

 

[futureapppsy2]

I am quite sympathetic to the concern that this argument will promote the idea that autistic individuals are "dangerous." An example of the type of thing I have seen is an autistic kid who, at around 15 years old, was looking at regular porn, came across child porn, and then got this idea that he was going to "investigate" the situation by looking for more. He wasn't ever charged with anything - he eventually got a call from a federal investigator that terrified him out of using any type of computer for years after. It was a really sad situation, even without legal ramifications. Had he been charged though, I think a good defense attorney would want to explore the argument that he did not have the ability to independently come to the conclusion that what he was doing was wrong. After all, in his mind he was trying to look for clues in the pictures as to who the kids might be. He lacked the theory of mind requisite to realize that other people would not automatically know his intentions, nor did he have the maturity or courage to tell his religious parents that he had been looking at porn, so he didn't ask an adult for help.

To me, a child (teenage) offender and an adult offender is quite different, even independent of ASD, in terms of considering knowledge of the offense and the potential for leeway and other considerations in sentencing, especially for crimes that don't involve direct contact with victims. The article in the OP specifically focuses on adult offenders, though.

 

[StellaB]

To me, a child (teenage) offender and an adult offender is quite different, even independent of ASD, in terms of considering knowledge of the offense and the potential for leeway and other considerations in sentencing, especially for crimes that don't involve direct contact with victims. The article in the OP specifically focuses on adult offenders, though.

True. But the general concept of mitigating factors is the same whether the person charged is a juvenile or adult. The sentencing guidelines are usually different, there are often more diversion programs available to youth, and prosecutors may be more reticent to charge juveniles. But the overarching legal framework is very similar nonetheless.