Mindblindness: Three Nations Approach the Special Case of the Criminally Accused Individual with Asperger's Syndrome

Penn State International Law Review Volume 27 Number 3 Penn State International Law Review Article 23 5-1-2009 Mindblindness: Three Nations Approach the Special Case of the Criminally Accused Individual with Asperger's Syndrome Brian Wauhop Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the International Law Commons Recommended Citation Wauhop, Brian (2009) "Mindblindness: Three Nations Approach the Special Case of the Criminally Accused Individual with Asperger's Syndrome," Penn State International Law Review: Vol. 27: No. 3, Article 23. Available at: http://elibrary.law.psu.edu/psilr/vol27/iss3/23 This Comment is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact . Mindblindness: Three Nations Approach the Special Case of the Criminally Accused Individual with Asperger's Syndrome Brian Wauhop* I. INTRODUCTION Imagine moving through life without the ability to comprehend that other people possess different emotional states, cognitive experiences and perceptions than you do. You have a compulsive need to create routines that affect all aspects of your everyday life. You pursue narrow interests, excluding other people and activities. While you communicate the best you can, you always feel misunderstood by others, and you always feel like you cannot understand what others mean when they speak. Imagine the confusion you would experience when faced with the constant reality that your own conduct, while appropriate from your perspective, is often socially unacceptable to others. This is a rough description of the social experience of an individual with Asperger's Syndrome ("AS").' AS is a pervasive developmental disorder 2 closely related to autistic spectrum disorders.3 According to the Center for Disease Control, one out of every 150 children has some form of autism. 4 While AS was first studied and described over sixty years ago, only recently has the * Juris Doctorate, Candidate, 2009, The Dickinson School of Law of the Pennsylvania State University. I thank my wife and my parents for their unwavering support, and the editors of the Penn State InternationalLaw Review for their insight and feedback. I dedicate this article to my brother. 1. See TONY ATrwoOD, THE COMPLETE GUIDE TO ASPERGER'S SYNDROME 36, 37 (Jessica Kingsley Publishers 2006). 2. Id. at 350 (defining "pervasive developmental disorder" as "a severe impairment in reciprocal social interaction skills and communication skills and the presence of repetitive behavior, interests and activities"). 3. See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (text revision 2000) (DSM-IV-TR) (hereinafter DSMIV). 4. See Ranit Mishori, More Children Are Affected and Controversies Rage: What Do We Know About Autism?, PARADE, Jan. 27, 2008, at 4. PENN STATE INTERNATIONAL LAW REVIEW [Vol. 27:3,4 diagnosis gained widespread acceptance.5 Current estimates put the prevalence rate of AS possibly as high as one in 250 individuals (.4 percent of the population).6 AS individuals experience difficulties coping with everyday life and society and frequently require lifelong coaching. 7 The social impairment appears to continue into adulthood. 8 Research suggests that AS sufferers are no more likely to commit crime than neurotypical 9 individuals.10 However, studies reveal the prevalence rate of AS individuals in prison populations is much higher, ranging between 1.5 percent and 2.4 percent. 1' This overrepresentation suggests that AS individuals are This slipping through the cracks in criminal prosecutions. 12 overrepresentation suggest that an AS individual might be convicted and incarcerated because of the peculiar manifestation of their disorder rather than on any legally culpable conduct. 13 With a potential prevalence rate of one in 250,14 the disorder has implications for criminal law systems throughout the world. The following discussion will analyze how criminal law systems in the United States, England, and Australia currently deal with the criminally accused AS individual. Courts in each of these nations have decided cases wherein criminal defendants have raised the diagnosis of AS in their defense. AS and the legal significance of its characteristic traits, including mindblindness, will be explained, followed by a brief history of criminal culpability requirements. Next, an analysis of recent English, United States and Australian cases will explore the current legal landscape for the AS criminal offender. The discussion will conclude by suggesting potential reforms in criminal law in order to improve the AS offender's access to justice. 5. See ArrwooD, supra note 1, at 14. 6. Id. at 46. 7. Id. at 57-92. 8. See Ami Klin, Autism and Asperger Syndrome: An Overview, 28 REV. BRAS. PSIQUIATR. S3, S1O (2006) (noting that many AS children are able to attend regular education classes with additional support, but the social impairment appears to be lifelong). 9. "Neurotypical" describes people whose neurological development and current neurological state allow for what most people would agree is the "normal" ability to process social cues and language. See Jim Sinclair, A Note About Language and Abbreviations, http://web.syr.edu/-jisincla/language.htm (last visited Feb. 11, 2008). 10. See ATrWOOD, supra note 1, at 335. 11. See Barbara G. Haskins, M.D. & J. Arturo Silva, M.D., Asperger's Disorderand Criminal Behavior: Forensic-PsychiatricConsiderations, 34 J. AM. ACAD. PSYCH. L. 374, 377, 382 (2006). 12. See generally id. 13. See Haskins & Silva, supra note 11, at 378. 14. See ATrWOOD, supra note 1, at 46. 2009] II. MINDBLINDNESS ASPERGER'S SYNDROME Asperger's Syndrome was first described by Austrian psychiatrist Dr. Hans Asperger in 1944.15 Dr. Asperger studied four children who 16 were otherwise intelligent but had difficulty with social interactions. He called the condition "autistic psychopathy" to indicate a stable personality disorder marked by social isolation. 17 Dr. Asperger's research was published primarily within German literature, 18 and while his original descriptions of the condition were very clear, he did not articulate diagnostic criteria for the disorder.' 9 As a result, widespread application of Dr. Asperger's research was delayed until 1981 when British psychiatrist Dr. Lorna Wing published a review of Dr. Asperger's work. 20 The title of Wing's article popularized the term "Asperger's syndrome., 2 That article spurred interest in Dr. Asperger's work, and new studies on the disorder began.22 A. DiagnosticCriteria Gillberg and Gillberg 23 published the first diagnostic criteria ("Gillberg criteria") for AS in 1989, and later revised it in 1991. The criteria identified six traits that must be present in a child to warrant a diagnosis (...truncated)