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The Dangers of an "Asperger's Defense"

By May 23, 2011

An article in the Philadelphia Inquirer describes Asperger Syndrome as a "new challenge to the courts."  Not, as one might imagine, because people with Asperger syndrome are more likely than others to be the victims of crimes.  Nor because people with Asperger syndrome are less likely to understand the social expectations around trespassing or stalking.  Rather, the article relates to a horrific rape and murder case in which the defendant is a young man with Asperger syndrome.  Here's an excerpt from the article:

Often when Jeff Sell watches police videos of a suspect talk about a horrific crime with the same warmth as a toy robot, avoid eye contact, offer precise detailed descriptions - perhaps even a confession - and appear oblivious to the harm caused, he doesn't see a monster.

What Sell sees is Asperger's.

"That is the textbook definition," said Sell, an attorney and vice president of public policy for the Autism Society of America.

A definition that fits a small but growing number of criminal defendants, such as James Lee Troutman, the 24-year-old man accused of raping and murdering his 9-year-old neighbor Skyler Kauffman earlier this month at the Souderton Gardens apartment complex where they lived.

The article goes on to describe an "Asperger's defense" as a way of avoiding criminal prosecution for the worst crimes imaginable.  While Asperger's on its own may not be sufficient for an insanity plea, the article suggests, it goes a long way in that direction.

In my opinion, this is a frightening depiction of a disorder which, in and of itself,  includes neither mental illness nor an inability to reason, understand the law, or grasp the concept of morality.  Asperger syndrome can certainly contribute to feelings of alienation and anger, and it can also make it difficult to fully empathize with others' emotions.  It can also, in some cases, go along with mental illness.  But the idea that people with AS (or people with mental illness) are, by definition, sociopaths capable of the rape and murder of a nine year old is terrifying.  In point of fact, it is also, quite simply, wrong.  Perhaps even more disturbing is the fact that a representative of the Autism Society of America is quoted (presumably correctly) as suggesting that such behavior is simply part and parcel of having an Asperger's diagnosis.

What are your thoughts on this issue?

May 23, 2011 at 10:08 am
(1) Malia says:

I agree with you on this one Lisa. AS does not fit the criteria for a defense based on the definitions of “insanity” within the definition of the law. As you say, having AS does not arbitrarily preclude individuals from being able to “reason, understand the law, or grasp the concept of morality.” Therefore, unless the condition is co-morbid with some form of actual insanity, individuals with AS are a culpable for their crimes (if they commit them) as anyone else. “Normal” society really has to stop the habit of generally characterizing people based on a few superficial items, such as eye gaze and tone of voice.

I disagree with the claim that Sell’s doesn’t see a monster. He does see one in his own mind and he’s named it – “Aspergers.” It’s time he takes a second look and realizes that Aspergers is not the monster he thinks it is.

May 23, 2011 at 10:17 am
(2) autism says:

Malia – I haven’t contacted the writers of this article, but on rereading I have to wonder whether Sell’s may have been misrepresented.

I got this weird sense, looking at some of the writing, that he MIGHT have said something “oh, yes, lack of eye contact and monotone are typical of Asperger’s,” and they made it look like he was saying “sociopathic violence is typical of Aspergers.”

Just wondering…


May 23, 2011 at 11:50 am
(3) Malia says:

Lisa – Always possible. There are those out there who would probably love to make the connection so that the mere possibility of a defendant having Aspergers would be accepted as an “insanity” defense or to expand the notion to fit all sorts of different agendas. Statements construed in the ways you mention in your blog can lead to fear and fear can lead unfounded prejudices against people with Aspergers… It’s a dangerous game the media plays with these things sometimes, IMO.

You nailed the crux of the issue perfectly – there is nothing in the criteria for an Aspergers diagnosis that preclude being able to “reason, understand the law, or grasp the concept of morality.” There are various other diagnoses within the DSM that do contain elements that preclude these reasoning abilities, but Aspergers is not, by definition, one of these. Certainly, people with Aspergers can also be susceptible to insanity (just as people without Aspergers can also be susceptible to insanity); but having Aspergers alone is not, and IMO should not be, sufficient to excuse responsibility for a crime.

May 23, 2011 at 11:21 am
(4) barbaraj says:

Can we say it isn’t possible that there is overlapping with sociopathy and aspergers? I don’t think we should be elitist and not allow for the fact that sociopathy , as ugly a word as it is, is nothing more than a diagnosis, as well, and a brain injury of similar type may have caused this “illness” . Look, as crazy as this may sound, I recall reading an article on Ted Bundy where it WAS mentioned that he may be a victim of his measle vaccine. NO LIE! Ten years ago my son was bitten badly on the neck by a 20 yr old girl with aspergers. I had known her for some time, long before her “new diagnosis” and had believed her to be a sociopath. I know we have enough on our plates, without another monster rearing it’s head but I see it as a possible comorbid. Maybe we could dig up a diagnostic check list for sociopathy…hey maybe they WERE the canaries in the mine?

May 23, 2011 at 11:45 am
(5) autism says:

Barbara, I can’t say with absolute certainty that there ISN”T an overlap with autism and ANYTHING, since there is really no way to build absolute negative proof.

I will say, however, that NOTHING in the diagnostic criteria says anything about violence, sociopathic inclinations, inability to reason, etc.

Is it possible that an individual with autism ALSO has hallucinations, or was raised by a horrific family, or underwent all sorts of trauma, etc.?

Of course!

Please, though, PLEASE don’t make this about vaccines – it’s a whole different topic.


May 23, 2011 at 1:27 pm
(6) Malia says:

barbaraj – “Look, as crazy as this may sound…” Doesn’t that sort of indicate that within your own heart you believe drawing a connection between Bundy and the measles vaccine is “reaching” a bit. When the courts assess a defendant for “insanity” they really shouldn’t afford themselves of such reaching speculations… and really, the media shouldn’t either – although it tends to.

The diagnostic criteria for “antisocial perosnality disorder” (aka sociopathy) are listed here: http://pn.psychiatryonline.org/content/39/1/25.2.full

There are several very key differences, IMO. It should be noted there has also been criticism of the DSM-IV criteria for being too broad and that not all people diagnosed with ASPD would be found “criminally insane.”

May 23, 2011 at 1:52 pm
(7) barbaraj says:

I’m only suggesting that it’s possible that one could be part of another. We all know that while approx.1% of the childhood population is on the spectrum, it seem that rate is higher with already in place diagnosis. Example, 18% of Down’s children are on the spectrum, children with fragile x are represented on the spectrum more often, as well. This logic, could suggest that there are comorbid diagnosis that we really don’t know about, not yet. And yes, “as crazy as that sounds with TB ( I’d assume for most)…didn’t sound that crazy to me or I wouldn’t have remembered it to consider when all the facts are in. I don’t know what is damaging so many minds, with sociopathy looming larger than asd, with numbers quoted as high as 3 % of the adult male population, but don’t assume it’s ugly parenting, autism just shed that shroud itself.

May 23, 2011 at 3:08 pm
(8) Malia says:

barbaraj “but don’t assume it’s ugly parenting” – Where did I assume that? Fact is, I didn’t. You’re assumptions, on the other hand, are not limited to the mere possibility of co-morbid conditions, but expand to include, very specifically, to a particular co-morbid cause, which is reaching quite a bit.

May 23, 2011 at 2:16 pm
(9) Martha Dunne says:

Please find here a paragraph from the book, “Wait, What Do You Mean?” Chapter: Crime, page 139
As the teenager progresses toward adulthood, he likely will learn
some coping skills and may form friendships based primarily on common
interests. However, socialization and behavioral adjustment complications
probably will remain into adulthood. The AS person is on the periphery, with
only a partially developed ability to recognize the timely behavioral norms,
the social contracts. Because he cannot accurately interpret “the model,” he
does not know how the acceptable rules of behavior should interface with
his own perceptions and emotions. He doesn’t take the social pulse before
speaking or acting. He cannot accurately measure the depth or breadth of
his action in a social context; he is naive and may misunderstand. This
debility, combined with low-impulse control, leaves the Aspie with a loose
grip on his branch of the acceptable behavior tree. He may fall . . . . More at http://www.xlibris.com Martha Dunne, author

May 23, 2011 at 2:48 pm
(10) Malia says:

Shall we then expect our courts to expand their criteria for an insanity defense to “misunderstanding social rules.” I don’t think so. Many sane people commit crimes for a variety of reasons. It may be that few of them are really logically “good” reasons, but that doesn’t make the perpetrator of a crime “criminally insane” or, if preferred, insane enough to be declared irresponsible for their crimes.

May 23, 2011 at 7:55 pm
(11) Martha Dunne says:

More from the same “Crime” chapter:
unidentified AS persons as defendants.
Asperger’s Syndrome does not necessarily free one from culpability,
but it may mitigate the responsibility. The increasing awareness of the
role that the autistic spectrum plays in society throws the court system
some extraordinary new challenges. How does the legal system handle
an alleged perpetrator’s fragile sense of social impact? Does the AS
person’s lack of judgment translate as diminished capacity? Instead of
decreased mental capacity, might a new defense be a decreased social
capacity? Just how “willful” is the offense? Is there a degree of malice
or intent? How much? Was the accused just curious about what would
happen if he did X, Y, or Z without taking notice of social significance?
Can a motive be accurately asserted?

May 23, 2011 at 2:59 pm
(12) autism says:

I’m with Malia on this.

Yes, Asperger syndrome causes difficulties with understanding the reasons behind some rules of the road.

But we’re talking about issues like “am I harassing that young woman when I ask her out for the third time after she’s said no twice.” Or running away when confronted by a policeman. Or not understanding that “taking the short cut” constitutes trespassing. That is – actions that are based on social misunderstandings or anxiety.

I would argue very strongly that no one with Asperger syndrome alone (as opposed to AS with a whole raft of other severe co-morbid issues) is going to have a hard time understanding why one doesn’t rape and murder a nine year old. I’m sorry, but that just doesn’t describe Asperger syndrome.

Could a person with AS also be a sociopath and murderer? Apparently the answer is yes; but it is very misleading to suggest that the AS is a primary reason (or, worse, excuse!) for horrific violence against a child.


May 23, 2011 at 4:33 pm
(13) zusia says:

The “textbook definition” Sell refers to in the quote is the part about the person with AS having “the same warmth as a toy robot, avoid eye contact, offer precise detailed descriptions – perhaps even a confession” — not about a person with AS being a sociopath.

Mali– I don’t think Barb’s “ugly parenting” reference was directed at you. If you read her sentence again it sounds to me like she’s saying about herself “I don’t know… but don’t assume…”

I think it’s perfectly reasonable to suggest some people with AS might be sociopaths– as a co-morbidity. Or, some people may be misdiagnosed as either. Hard to tell.

May 23, 2011 at 4:36 pm
(14) barbaraj says:

I wish I could agree , I do pray my son knows good from evil, he seems to , yet again, brain damage is brain damage, and while I would think most sociopaths certainly would not kill anyone, and given the right economic status may well use their “powers” for good..their own good of course..in a position of ceo or at least someone “in charge”, I would suspect most autistic adults wouldn’t resort to violent crime either. I don’t know the numbers with pathology among murderers. I’m just not convinced that being a murderer is necessarily more likely with a particular diagnosis. Imo anyone who kills for the sake of killing is insane and the school and campus killings should give us something for study…where on the line did most of them fall?

May 23, 2011 at 6:35 pm
(15) Malia says:

barbaraj, Is your child’s complete diagnosis Aspergers? I disagree with the comment that brain damage is brain damage (i.e. all the same). Damage to different areas of the brain result in different behavioral responses. The “study” you seem to be advocating is a “witch hunt” – looking for your particular monster (Aspergers) among those who have already been found to be criminally insane. I thought society had gotten past doing those sorts of things.

May 23, 2011 at 6:57 pm
(16) Malia says:

Let me use an example. Within the prison system, it is common knowledge that there are more black people convicted for violent crimes than white people… but to assume that this means that black people are more inherently inclined to violence than white people is a poor assumption, because it does not account for all the prejudicial flaws within the legal system that also tends to influence the conviction rates.

So lets say that a such a study reveals that there are incidents of Aspergers among the criminally insane institution populations higher than the 1% believed to be in the general population. However, the conclusion that people with Aspergers are more likely to become criminally insane than people without Aspergers would still be faulty in that it would fail to consider all the prejudicial flaws within the legal system that might tend to view an eye-evading person as being less “believable” than an apparently gregarious person manipulating the social rules (i.e. a sociopath).

May 23, 2011 at 4:46 pm
(17) autism says:

I suppose anyone might commit a murder in self defense, or in a moment of fear, anger, jealousy, etc. And people with AS may be more likely to experience such emotions or situations intensely.

But here’s the critical issue: are any of you suggesting that it’s reasonable to say, for example, “I don’t want my child going to school with a child with AS, because those people are born sociopaths and criminals?” Or… “I don’t want to hire someone with a disorder that’s closely linked to the rape and murder of children?”

Because it seems to me that that’s precisely the kind of response folks will have to this kind of story.


May 23, 2011 at 5:01 pm
(18) Catsidhe says:

I like to think of Asergers and Psychopathy as opposite ends of a spectrum with “normal” in the middle.

AS people deeply care about the feelings of others, but 1. have varying degrees of difficulty figuring out what those feelings are, and 2. are often misread in our own reactions. That is: We don’t always know that we’re annoying you, are ourselves deeply upset that we have when we find out, but NTs can’t always tell how upset we are from our presentation.

Psychopaths, on the other hand, are very well aware of what other people are feeling… they just don’t care. They have an almost preternatural ability to know and manipulate other people, and only really give a damn insofar as it affects them.

Aspies are canonically prone to social anxiety and difficulty with people, and this being a pervasive problem; Psychopaths are canonically easy-going and pleasant, socially fluent and manipulative … when they want to be.

May 23, 2011 at 6:17 pm
(19) Malia says:

Catsidhe, Thank you. These are precisely the key differences I was referring to above.

May 23, 2011 at 6:45 pm
(20) Paula says:

I totally agree with Catsidhe on the difference between a person with Asperger’s and one who is a psychopath. Ted Bundy himself proves that. He was a very charming, manipulative person to his victims.

May 23, 2011 at 6:51 pm
(21) Elyse Bruce says:

Lisa wrote: ” Perhaps even more disturbing is the fact that a representative of the Autism Society of America is quoted (presumably correctly) as suggesting that such behavior is simply part and parcel of having an Asperger’s diagnosis.”

Then maybe it’s time for the Autism community to STOP supporting people charged with crimes who are misusing AS as their defence and expecting to be set free by virtue of having AS, either formally diagnosed or self-diagnosed.

Maybe it’s time for the Autism community to STOP supporting Autism Activists and Autism Ambassadors and Autism Advocates who are promoting the idea that people like Dr. Nick Dubin and hacker Gary McKinnon, because of AS, need more understanding and less judgment.

Maybe it’s time for the Autism community to STOP giving children, youth and adults with AS a “get out of jail free” excuse for choosing to disregard the law and rules of society, and start holding them accountable for their actions within the parameters of what the individual can comprehend.

Even a child with AS knows right from wrong, so maybe it’s time for the Autism community to start making some better choices as to who they turn to for leadership in the community and to start making better decisions as to how much leeway one ought to afford an individual with Asperger Syndrome.

May 23, 2011 at 7:09 pm
(22) Asemp says:

Could “normal” people be to blame? They bullied him at school, which is all too common in people with Asperger’s without the social skills to defend themselves. They excluded him from their activities making no effort to engage him because he was “strange” and “weird”, leaving him alone, socially excluded, and feeling like a misfit. They left him believing he never had a chance of dating a girl his own age, and for some reason this is considered normal, and acceptable behaviour. He has the diagnosis, he’s in the minority, so he must be the abnormal one.

I have no doubt he knew what he was doing was wrong, but it was probably the only avenue he felt available to express the desires any young man has to procreate. People are all too quick to demonise people who commit these sort of crimes, and quick to forget the way they treat others as a result of their own disability, being “normal” or neurotypical.

None of the people who bullied him or socially excluded him will give a second thought to their behaviours, because they’re considered normal. Yet this, I feel, is precisely why he eventually committed the crime he did. But ultimately, he as the executor of the actions is held responsible – and rightly so!

May 23, 2011 at 11:14 pm
(23) barbaraj says:

I’m not sure there is a big divide between the two..aspergers perhaps not able to be socially connected, sociopath perhaps not able to be socially connected. Are we assuming that one has more control than the other? While we attempt to give the skills to our children by modeling we most often fail, and yet these same skills are learned in the same model fashion by sociopaths, and acted to perfection. I don’t fear sociopaths, most often they really don’t kill, they use people and are sad and loveless for the most part. I feel the same pain for them that I feel for my son, and yes it was me..thanks for correcting that Zusia..that doesn’t assume “ugly parenting” is anymore responsible for the creation of a sociopath than it is for the creation of autism. Maybe those early stories of isolation in the lives of a sociopath were the same as for asd children, not a chosen path at all.

May 24, 2011 at 6:57 am
(24) autism says:

So… just to be sure I understand, Barbara, how do you actually feel about the idea of using an “asperger’s defense” in the case of the premeditated rape and murder of a nine year old girl?


May 24, 2011 at 10:18 am
(25) Malia says:

barbaraj – The differences between us on this issue seem in part to stem from one thing: you’re focusing on the similarities between the two conditions and I’m focusing on the differences. That doesn’t mean that either the similarities or the differences don’t exist, but that this is an issue that can be validly viewed very differently from different perspectives.

This is one of the many problems with the subjectiveness of mental health diagnoses in general. As a whole they cannot be isolated from the “opinions” of the society surrounding it, which change over time. Things like perceived “political correctness” even influence what criteria go into the DSM. Study results are skewed by this effect and court judgment is skewed by this effect and, unfortunately, prejudice can also be driven by this same effect.

As the Korea study shows, the rate of ASDs within a society can be “altered” by more than 100% just by “looking harder” within a broader base of the population.

The criteria for judging criminal insanity are not very scientific. The notion somewhat predates society’s obsession with putting people’s social behaviors under finer and finer microscopes. The court’s task is not to discern the cause of someone’s insanity but to assess whether or not a person was capable of discerning enough right from wrong that he or she should be held responsible for whatever crime he or she has been accused of. It can often come down to an emotional response as to the “believability” of the suspect by 12 “reasonable” people (the jury). Miscarriages of justice are all too common.

I don’t think using it as a “scientific” base for studying various forms of mental illness from a medical standpoint really does anything too terribly useful.

May 24, 2011 at 10:45 am
(26) Lisa says:

while there are similarities in description, it seems to me that there is a huge difference between antisocial (sociopathic) behavior and Asperger syndrome. The difference lies in the reasons for and type of behavior we’re talking about.

ANTI-social behavior involves intentionally acting in hurtful ways toward others in the full knowledge that what you’re doing is going to injure someone – and you think that’s fun, funny, or simply your right. An ANTI social person commits murder in the full knowledge of what he or she is doing – and with no remorse.

These qualities simply don’t apply in the case of Asperger syndrome. Behaviors in this case relate to a lack of understanding of social norms – not to a desire to injure. And if behaviors are unintentionally hurtful, people with AS feel and express remorse.

In other words, people with AS don’t lack a conscience – but they may lack a full understanding of which relatively benign behaviors are likely to be hurtful. A person with AS might not know it’s hurtful to mention another person’s weight gain. No one with AS would be confused, however, as to whether it might be a bad thing to rape and murder a little girl.

May 24, 2011 at 11:10 am
(27) Malia says:

“No one with AS would be confused, however, as to whether it might be a bad thing to rape and murder a little girl.”

Lisa – I do agree with you in principal, but this statement can be misconstrued as meaning that people with AS are incapable of also being criminally insane. I do think it is possible that a particular individual who happens to have AS to also be confused whether it might be a bad things to rape and murder a little girl. That is, it is not outside the realm of possibility.

However, I agree that, within the confines of an AS diagnosis, there is nothing to indicate that the person would necessarily be confused about such a thing… and indeed, I know many people diagnosed with AS who are clearly not confused over such an issue. I am convinced they know and believe it would be wrong to do such a thing.

The notion of “criminal insanity” is not joined at the hip with the notion of “developmental disability” or even “mental illness” nor, IMO, should it ever be – since the two “systems” (justice and medical) are assessing individuals using completely different criteria, standards, and approaches.

May 24, 2011 at 11:16 am
(28) barbaraj says:

Our system is far from perfect, and I’m not sure I “even” buy into it being the best there is. Malia, you mentioned the “reasonable” people..the jury..which brings up “jury of your peers”..which suggests another question…could those with asd be jurors..would they pass the interview? If we can’t find peers then what do we do? Would nt’s want to be judged by a jury of adults on the spectrum. Is there a test to determine if some nt’s aren’t just “passing”? The social behaviors of anyone on the spectrum are likely perceived by the nt’s as insane, aren’t they? Is that truth or is it simply that nt’s make all rules? I have no answers, and I do feel the fear, I don’t want my son considered a danger because of a change in “labeling”.
Yes there will be an asperger’s defense, however, I have faith, (very little) that each as an individual will be considered as either able minded to stand trial or not. I do not think aspergers adults or sociopathic adults as compared to the general public are any more likely to commit murder. I do believe serial killers fall under the sociopath/psychopath label more often, but in the world of murder while they ARE headliners they are really pretty RARE.

May 24, 2011 at 4:43 pm
(29) Malia says:

Legal definition of “peer” – “The U.S. Constitution guarantees criminal defendants a “jury of one’s peers,” which means an impartial group of citizens from the judicial district (e.g. county) in which the defendant lives. However, jurors are not required to be ethnically, educationally, economically or sexually the same as the defendant, although in some jurisdictions attempts are made to meet those criteria.” http://definitions.uslegal.com/p/peer/

Therefore, an AS individual is not guaranteed the right to be tried with a jury of AS individuals.

May 24, 2011 at 4:56 pm
(30) Malia says:

The jury selection process (aka “voir dire”) does give the lawyers on both sides an opportunity to “weed out” a certain number of jurors based on a variety of different criteria, so I believe it would likely come down to whether or not both the prosecuting attorney and the defense attorney accept a potential juror as being competent enough to understand the issues surrounding the case on trial and to be able to weigh the evidence presented impartially… regardless of what the specific nature of their disability is (i.e. AS, ADHD, OCD, etc.). If your “peer” suggestion for AS individuals were ever allowed to hold water, then in theory psychopaths would be entitled to juries comprised completely of psychopaths.

May 24, 2011 at 11:44 am
(31) barbaraj says:

…and while I , as well, do see sociopaths as mean ,Lisa, I do not believe it’s a choice…imo..it’s a condition they have absolutely no control over..remember they perfected the “act” and learned from modeling..why hold them responsible for being born or developing without empathy or with extreme selfishness…we wouldn’t want anyone telling us our children can “control” their autism?? .. you suggest an evil as opposed to an illness?

May 24, 2011 at 12:47 pm
(32) autism says:

Barbara – interesting question… Should a person be held responsible for deliberately and knowingly torturing and killing another person if they are diagnosed with a mental illness that causes such behavior?

I suppose I’d need to know a whole lot more than I do about sociopathic and psychopathic illness, behavior, etc. to respond intelligently to that question.

Meanwhile, however, it is absolutely clear that such a person should be kept away from the general public.


May 24, 2011 at 4:14 pm
(33) Malia says:

Barbaraj – Under the law, essentially all children are deemed to be incompetent (i.e. not wholly legally responsible for their actions). The legal responsibility for a child’s actions often falls onto the parent or legal guardian. There are some variations between States, but in many of them, it is your legal duty to control your minor child’s behavior to within the limits of the law regardless of whether they are mentally ill or not. In some States, failure to do this can result in jail time for the parent. There are reasons why the DSM criteria for Antisocial Personality Disorder”specify that the individual must be 18 years of age or older.

May 24, 2011 at 6:35 pm
(34) Gianni says:

Asperger syndrome has a number of different characteristics but an AS sufferer is not more likely to be a perpetrator that anyone else. There’s plenty of studies that show this. Where the criminal justice system gets into trouble with AS is in a number of different ways.
a) Investigative procedures. Interviewing an AS sufferer will usually lead to unreliable evidence. This is not because an AS sufferer lies, it’s precisely because they usually try to please that they find themselves admitting to things that are not true. The mechanism behind this is explained when you understand the brain defects associated with AS. Researchers believe the part of the brain called the amygdala has impaired functioning which causes sufferers to compensate. The compensation often leads to unreliable recollection.
b) Custodial settings. AS sufferers are targets for bullies. This is well documented. When put in desperate situations, AS sufferers will take, what seems to them, logical steps to alleviate the stress. This sometimes results in inappropriate actions that cause strife. However, you can’t blame the AS sufferer for taking actions to protect himself. There are a number of such cases where judges have been forced to remove AS sufferers from custodial settings because they are bullied.
c) Criminal intent. In criminal law, it is not enough that you acted out a crime, but it is also important that you “meant it”, or in legal terms “Mens rea”. For example, if an AS sufferer is in a store and is holding some merchandise, then the store manager asks him to leave, an AS sufferer will usually leave the store but will likely forget to leave the merchandise behind. The act of leaving the store with the merchandise in this case is clearly not shoplifting in the context of the disorder.
+++ lots more.

I don’t know the specifics of this case, but I would be very hesitant to make any conclusions without the evidence in front of me.

May 24, 2011 at 10:28 pm
(35) Springingtiger says:

Killing another human being is wrong, plain and simple. There are some crimes for which AS might be a defense such as when the crime involves breaching an illogical prohibition – trespass, secrecy etc – how does anyone resist going through an open door or looking through an uncurtained window?

There is also the problem that we tend to act without regard to consequences because we don’t tend to link actions with results until we have done the action and produced the consequences. Also because we learn by imitation if others hurt us it may appear that hurting others is socially acceptable whether we like it or not. Actually cruelty is normal in society, but I think it is clear in every ones education that killing is wrong otherwise we’d allow people to carry guns.

May 25, 2011 at 5:38 am
(36) Gianni says:

Killing another human being is wrong, plain and simple.
It’s not “plain and simple”. There exist legal justifications for killing. Self defense and in some countries, euthanasia are just two. Not that I can see how these can be applied here.
Even if “killing is wrong”, it happens and sometimes it’s no one’s fault. Car accidents happen all the time and many times these are fatal. Do we criminalize car makers because their cars can kill?
In this particular case, do we know if the circumstances behind the killing? I don’t so I can’t answer and we’d be silly to think we can without the facts. So, yes, there might be mitigating circumstances, then again, there might not be any. Making a criminal of people without knowing the circumstances is much worse for our safety than one loose criminal.

May 25, 2011 at 8:54 am
(37) Malia says:

I agree Gianni… it’s not plain and simple. I just wanted to add that the principle of “mens rea” (mental state) is somewhat crime specific; for example, the onus of what level of “mental intent” is required does change slightly if the crime is homicide. There are also different grades of homicide depending on these variations in degree of intent (1st degree, 2nd degree, etc.) Decisions can tie into the concept of “ignorantia juris non excusat” – “ignorance of the law is [generally] no excuse” but it can affect “intent” and the application of this principle has been historically far from absolute. Mitigation for “misunderstanding” the law in various ways is often applied during sentencing.

May 24, 2011 at 11:25 pm
(38) barbaraj says:

Interesting, tonight, when I turned on the local news, the lead in story was of a 17 yr old autistic boy who had received 50yrs in prison for raping a little seven year old, and today, a panel of three judges reduced his sentence to less than half, with possibility of parole in ten. His attorney said the boys “autism” played a part in the crime, and mumbled something about playing with younger children… http://www.baltimoresun.com/news/maryland/anne-arundel/bs-md-ar-raszewski-20110524,0,5366023.story

May 25, 2011 at 7:14 am
(39) Altera says:

People assume when things are described by the same word they have substantial similarity.

“Empathy” is not one of those things.

You can split empathy into reading people and caring about people. Other than both involving “emotions” they aren’t all that similar.

Imagine being able to read people with 100% accuracy so you would be able to manipulate social situations how you want. The power would make it very tempting to just disregard people’s feelings even though you are aware you are hurting them. Over time you could become more and more willing to commit actions against people as the thrill of using your “talent” would outweigh the suffering, and you would rationalize away any feelings of “empathy”(as in caring). This is how some people grow up to become sociopaths, an excess of social ability goes to the person’s head and makes them mad with power.

That is not the same thing as asperger’s or autism which involves impairment of being able to read people, not impairment of caring about people.

The suspect described is more likely to be a sociopath than someone with Asperger’s.

I can imagine some cases where Asperger’s could factor into a defense, but these are cases where it would be criminal negligence on a typical person’s part but where the ASD person could’ve easily made the mistake even while exercising due diligence. I can’t think of any crime done deliberately where Asperger’s or any form of autism would be an excuse.

May 25, 2011 at 9:10 am
(40) autism says:

I’m still confused.

A grown person with Asperger syndrome surely has the mental capacity to understand the law. There is nothing in the criteria for Asperger syndrome that would suggest a desire (let alone an ability) to manipulate another person. Nor is there anything in the Asperger syndrome diagnosis regarding sadistic behavior, brutality, hallucinations, uncontrollable rage, etc.

Setting aside all the possible outside factors (bullying, parental abuse, other mental illnesses, etc.), how could Asperger syndrome alone possibly excuse or mitigate the acts this young man has committed?

We’re not talking about trespassing, stalking, shop lifting, misunderstanding a kind “no” for a shy “yes,” etc. We are talking about the ultimate violent acts against a child. This little girl wasn’t stalked or harassed, she was raped and murdered.

Sure, a person with Aspergers could ALSO have any other diagnosis in the book, or have lived through any kind of awfulness.

But this conversation is worrying to me, because there seems to be a willingness to concede that “well, Aspergers could lead to that sort of thing…” If such were really the case, we’d be crazy to allow children on the autism spectrum anywhere near other children – and our focus should be entirely on stifling antisocial behaviors that could lead to rape, murder, arson, and the like.

IMO, this is a slippery slope. I would hope that members of the autism community would understand that autism, in and of itself, is not a recipe for violent crime.


May 25, 2011 at 8:01 pm
(41) Gianni says:

“Nor is there anything in the Asperger syndrome diagnosis … uncontrollable rage”.
That’s not entirely true. In Han’s Asperger’s own seminal paper he discussed that AS sufferers were subject to “blind rage”.

from: http://www.paulcooijmans.com/asperger/asperger_summarized.html

“The blind rage sometimes seen in these children when bullied or mocked appears to come from the “reptilian brain”, …”

The extent of this aspect of AS depends on the individual, but if you put an AS sufferer in a corner and provoke them, they are very likely to take surprisingly violent actions that they are not able to control. This is not to be confused with how a neurotypical person handles rage. An AS sufferer will really loose control. They usually don’t even remember the event. Hint, never take an AS sufferer there.

May 25, 2011 at 8:49 pm
(42) Malia says:

As I mentioned on another thread, the concept of “irresistible impulse” will succeed in some jurisdictions as being valid to an “insanity defense” and in other jurisdictions it has been eliminated. Actually, in some jurisdictions, the “insanity defense” has been eliminated. In those jurisdictions where the concept of “irresistible impulse” is not recognized, the AS sufferer who “looses control” may still be found to be sane enough to be held responsible for their actions. The prosecution, however, may not be able to sufficiently meet the burden of proof regarding “intent” which then may allow for a reduction of the degree of the crime and a lighter sentence due to “diminished capacity.”

May 25, 2011 at 10:07 am
(43) Malia says:

Lisa, I agree. However, the courts attempt to assess each case individually… and there has always been latitude built into that system to accomodate a variety of human social issues. As I said before, justice is not scientific – it’s actually a social process and usually comes down to the “case” made for that particular instance. It has flaws, but it also has some checks and balances (like “voir dire” and “mens rea”). As I’ve also said, it is an imperfect system, but IMO better than some of the alternatives.

When it comes to particular cases, the media usually doesn’t get all the facts out there for the public to properly assess the case. They often have an agenda of their own, which makes the issue even worse. They also tend to blend things like psychiatric principles with legal ones to create “absolutes” in the minds of readers (who are as time goes on becoming more and more “science” oriented in general). So, the public often forms erroneous generalizations about what influenced the court’s decision, either regarding conviction or involving sentencing. For example, I suspect that in reality within the courts, there is no such things as an “Aspergers defence.” It would likely be a very specific circumstance that mitigated the sentencing of the 17 year old in Maryland. Also, keep in mind that sentences are mitigated frequently for even little things like “good behavior.”

May 25, 2011 at 10:25 am
(44) Malia says:

(continuing) He was convicted of the crime, which tells me he was held “criminally responsible” for it (i.e. not found to be “ciminally insane”).

May 25, 2011 at 11:08 am
(45) Sandy says:

I think that regardless of a disability, having that disability doesn’t automatically make an individual person thought-free of committing crimes. No disability really removes that possible thought process and most people who do commit crimes don’t figure in the consequences unless they’re part of the mob or organized crime. There is no disability responsible for rape and murder.

That said, everyone has to follow rules. But the two cases mentioned are not just petty crimes. They’re violent crimes of much younger children than the ages of the defendants, and if true they committed the crimes, they left victims. They themselves really are not the victim. I believe if a persons disability is such that the disability is to blame for the actions, then that individual had no business not being supervised 24/7.

In my opinion as well, this is a frightening depiction of a disorder which could impact our own children as to how the public views them, as potential criminals of violent crimes just based on their ASD disability. We’ll be seeing civil commitment happening more and more as a result to prevent such violent crimes.

May 25, 2011 at 11:44 am
(46) Malia says:

“I think that regardless of a disability, having that disability doesn’t automatically make an individual person thought-free of committing crimes.”

Sandy – I agree. However, let’s flip the coin over – Regardless of a disability, having that disability doesn’t automatically make an individual person thought responsible for committing crimes either. People without AS or even without sociopathy can be found to be “criminally insane” for committing murder. Therefore, we can’t arbitrarily take away the “right” of an individual person who happens to have AS (who may also have been “criminally insane” in a particular instance) to launch a defence based on that possibility. They have the same “rights” to that defence has people without AS – regardless of how a generally misinformed public might react to it. The court’s can’t afford to fear how the media might play or “prey upon” the decisions they make. To avoid the impact of prejudice, the public should really try to keep the differing principles of justice and psychiatry separate in their minds. For example, one of the underlying “purposes” of the concept of “criminal insanity” within the justice system is to enable the system to incarcerate (in instutions rather than jails) particularly dangerous individuals for indeterminate lengths of time; thereby, getting around things like mandatory maximum sentences for certain crimes.

May 25, 2011 at 12:24 pm
(47) Sandy says:

A person with or without AS can also be criminally insane, but I was referring to ‘AS’ as a defense for their actions in a violent crime. It is my understanding that AS is the defense, not criminally insane. They are two different defenses. AS leading to a criminally insane defense is just as frightening. Had the defense just been criminally insane, it wouldn’t be such a big deal.

May 25, 2011 at 12:38 pm
(48) Malia says:

Sandy – Please find in American law where there is such a thing as an “Aspergers defence.” I sincerely doubt there is such a thing. “Not guilty by reason of insanity” is the legal defence. “Guilty but insane” is, obviously, not a defence, but a mitigating factor in sentencing. “Aspergers defence” seems to be a term exclusively used by the media with no foundation in American law that I can find. To fly as a “legal defence” it would have to pass the concepts in law surrounding “not guilty by reason of insanity.”

Note: There are significant differences between Canada and the US in this area of law. For example, Bill C-30, passed in 1991, actually uses the term “mental disorder” although the accused must be “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.”

May 25, 2011 at 1:02 pm
(49) Malia says:

Another form of “semi-defence” (for lack of a better term) is the concept of “Diminished Capacity.” While technically a legal defence, it is really more of a mitigation because it has the effect of reducing the charges to lesser ones or ones of a lesser degree (e.g. first vs. second degree homicide). As it implies, it generally does not fully relieve the accused of legal responsibility, but diminishes it.

May 25, 2011 at 1:03 pm
(50) Sandy says:

This case is in PA, USA, not Canada and within the article states” “The so-called Asperger’s defense is cropping up in legal cases nationally, as lawyers argue that people with the disorder may be incapable of completely understanding the ramifications of their actions or expressing remorse in a socially acceptable way.” That doescn’t sound like a criminally insane defense. All it might take is such cases making it “such a thing”.

I still stand by my opinion. I believe if a persons disability is such that the disability is to blame for the actions, then that individual had no business not being supervised 24/7, which may prevent what happened to that little girl. This is a frightening depiction of a disorder which could impact our own children as to how the public views them, as potential criminals of violent crimes just based on their ASD disability.

May 25, 2011 at 1:08 pm
(51) Malia says:

“so-called Asperger’s defense” – the term “so-called” here is key – indicating to me it is not a “legal” term but a “slang” term.

May 25, 2011 at 1:15 pm
(52) Sandy says:

Legal term or slang, makes no difference to me. “lawyers argue that people with the disorder may be incapable of completely understanding the ramifications of their actions or expressing remorse in a socially acceptable way.” They are using it in court as a defense. That’s legal enough and frightening enough for me.
Case closed :)

May 25, 2011 at 1:21 pm
(53) autism says:

It’s certainly a slang term and not an “official” term.

But I keep coming back to the same issue.

Yes, it is possible that AS could render an individual less capable of understanding the difference between flirting and harassment. Or it could make it tough to tell the difference between “borrowing” and “taking.” These, after all, are social constructs – and the distinctions are subtle and malleable.

But I simply can’t imagine how an individual with AS ALONE could possibly argue that his AS made it impossible to know that raping and killing a child was (a) morally wrong and (b) very, very illegal. There is no subtlety or uncertainty involved.

Yes, you can say that sometimes killing another person is the right thing to do, as described above (Gianni). But then you’re talking about high level philosophical thinking – something that would certainly require a sophisticated level of moral reasoning. Anyone who can think at that level is certainly VERY aware of the implications of his actions.

Obviously in this case or similar cases we’re not talking about war, mercy killing, justice being administered, etc. We’re talking about murder.


May 25, 2011 at 3:16 pm
(54) Malia says:

Lisa – The concept of not understanding that something is “morally wrong” applies to the “insanity defence” – not to mitigating sentencing or applciation of “diminished capacity.” The article does clearly state: “The disorder alone doesn’t meet the standards for an insanity defense, but it could be a “profound” mitigating factor, information presented in court that could result in reduced charges or a lesser sentence, Penglase said.”

Homicide also comes in varying degrees of intent and principles of “diminished capacity” are routinely applied in these cases. For example, a drunk driver is very unlikely to be charged with 1st degree murder – even if they developed an intent to hit their victim while intoxicated.

Of course, laws can be tightened and legislation changed; but to be within the law, such changes cannot “target” a specifc group. For example, California opted to eliminate “diminished capacity” rather than saying that hypogycemics couldn’t try to use a “diminished capacity” defence.

May 25, 2011 at 3:44 pm
(55) Malia says:

In addition, the PA case being discussed in the article does not appear to have been actually decided yet. As such, we don’t know yet whether or not the PA courts will accept all or even any of the arguments presented by the Defence… nor do we know all the pertinent facts of the case.

May 25, 2011 at 1:35 pm
(56) Sandy says:

“Yes, you can say that sometimes killing another person is the right thing to do, as described above” I would agree with this, but that doesn’t apply to this case. There’s nothing ‘right’ about it.

I also ‘find it hard to imagine how an individual with AS ALONE could possibly argue that his AS made it impossible to know that raping and killing a child was (a) morally wrong and (b) very, very illegal.’ If that was the case, that AS alone was the cause, that person should have had 24/7 supervision. I also find what, if correct, that the Autism Society of America could make such a statement. The consuquences of these cases most certainly could end in sterotyping of all, which often happens anyway but it’s furthered by such a statement by ASA.

May 25, 2011 at 4:11 pm
(57) zusia says:

A person with AS alone could argue that the following Asperger’s criteria is what caused them to act in a morally inappropriate or criminally offensive way:

(1) encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus
(2) apparently inflexible adherence to specific, nonfunctional routines or rituals

Number 1 covers the most ground because people with AS can indeed have some really bizarre patterns of interest. If a person with AS is intensely focused on trains to the point of engaging in repeated criminal activity, as we’ve seen in more than one recent news story, another person with AS could be intensely focused on child pornography, say, and unable to control himself sexually, due to the compulsion, when in the presence of a child. A resulting death would most likely be totally accidental as the person comes to grasp with his compulsion and what to do to avoid getting caught.

Number 2 acknowledges ritualistic behavior which, again, speaks to a compulsive nature.

Both the train stalking criminal and the child stalking criminal should be held accountable for breaking the law but the acts themselves can and should be interpreted with Asperger’s in mind.

May 30, 2011 at 5:26 pm
(58) Emily says:

From my experience, while many people with Aspergers have the ability to reason, understand the law, and grasp the concept of morality in some situations, these are not necessarily higher order thinking skills (HOTS) that transfer successfully to all situations. Judgement is one of the HOTS that can be most difficult for people with AS. Black and white thinking, literalness, problems with theory of mind and other traits of ASD can also interfere with the ability to understand and judge wrong from right. Here is a prime example: A person with AS is likely to have a very difficult time judging what to tell and what to withhold in a police interview to avoid self-incrimination. In other words, even in this process, the person may not have the jugdement to protect their own rights. I asked a very intelligent man with AS what he would tell the police in an interview and he said, “I would tell everything that happened, because the truth will set you free.” Development in AS is uneven, just because the person has many strengths does not mean that HOTS and the skills needed to commit a crime or defend oneself are there. This is not a get out of jail free card but a developmental feature that needs to be taken into account in judgment and rehabiliation.

August 7, 2011 at 12:55 am
(59) Kyle says:

Well, people who claim that people with Asperger’s aren’t capable of a serious bloodbath over a simple misunderstanding or argument don’t know them well. Many aren’t violent, but occasionally will freak out, over the smallest things. My ex girlfriend had a lil brother with it, and he liked me, but while he pretended to understand(and seemed quite intelligent with vocabulary and the ability to tear up a comp, put it together perfectly or make one with spare parts at the age of 13), he didn’t. His grades were horrible even in English classes, and always acted out in school, home, in public. Since I have ADHD, and could identify with him to a point.

Will he be a serial killer? No, but it’s obvious that he won’t be a psychopath who can fake his way through highschool, and maybe even college while charming his way through life instead of actually working.

Another 20 year old student I met was a bit more adjusted, but failing most classes,worked out cause his meds caused weight gain, and talked only about girls. Crying about how he couldn’t find a girlfriend, but would then say she’d have to be beautiful, well dressed and very fit(when he was struggling to keep in shape.) No idea he was being shallow. He was in a class of mine and lived in the gym so we’d usually chat in there. He also said he had Asperger’s within 3 minutes of us shooting the sh!t once. They have far more anger than many could understand… and some seem intelligent. Though they can’t read social cues, body language, and are inept with social skills.

Psychopaths should be institutionalized. Most are not self aware like the Zodiac Killer or Edmund Kemper and have had head trauma, suffered horrible abuse, and don’t understand the magnitude of their actions.

August 21, 2011 at 2:49 pm
(60) Plastick says:

Aspergers has never been shown to be comorbid with mental illness of any kind.

The author of this article should do their research before spreading heresay which only serves to build a stigma regarding those with Aspergers.

August 26, 2011 at 4:15 pm
(61) Gabe says:

My brother was accused of rape, only he doesn’t have Aspergers, the alleged victim does.

She’s eighteen, spends her days propositioning strangers at a beach (not making this up her parents drop her off at the beach in the morning and pick her up late in the evening). She claims to have had three abortions since she was sixteen. She has literally walked by our house in nothing but her underclothes. Now that she’s accused my brother the cops won’t listen to the fact that he wasn’t even in the city at the time of the incident. they say ‘he took advantage of a mentally challenged person for his own sick pleasure’. That’s a direct quote from the detective in charge. The parents of this girl are using the Asperger’s defense. We plan to use the ‘he was more than a hundred miles away for the week that the incident occurred’.

This article has given me a bleak outlook, since it seems that these people will believe this girl over my brother, who I might add has no criminal history and is about to have his life completely ruined, since they are going for to counts of Class A Sexual Assault.

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