ASD & Criminal Law

What You Need to Know

Peter A. Hahn, Esq. AANE Conference

November 2019

Two Paradigms: Clinical & Criminal

!  Clinical !  A medical model that allows for shades of gray !  The diagnosis: Autism Spectrum Disorder

!  Criminal !  A legal model that prefers two options for each issue

(i.e. guilty/innocent; competent/incompetent) !  The criminal justice system is generally unaware

of ASD and therefore ill-equipped to generate appropriate consequences for ASD-related conduct

Typical ASD Behaviors

!  Impulsivity !  Social immaturity !  Obsessive interests or preoccupation !  Misunderstanding social cues and rules !  Lack of concern for outcome of actions !  Lack of empathy !  Anxiety/panic

Typical Criminal Cases

!  Harassment !  Stalking !  Threats !  Assault and battery !  Domestic violence !  Sexual misconduct !  Vandalism

Entry into Court for Criminal Charges

!  Arrest by police or court notice to appear !  Police file Application for Criminal

Complaint !  Clerk’s Hearing

!  For non-arrest misdemeanors with some exceptions

!  Preliminary determination by clerk magistrate at an informal hearing to decide whether there is probable cause to issue the criminal complaint

Entry into Court for Criminal Charges

!  Arraignment !  Where there is an arrest, felony, or issuance

of complaint after a clerk’s hearing !  Formal reading of the charge(s) in court by a

judge !  The point at which an entry goes on a

person’s criminal record (CORI) !  Judge may set bail, conditions of release, or

consider a detention order without bail

Mitigating Criminal Consequences

!  Diversion & Pretrial probation !  Ways to dismiss a case without a plea or formal finding of

guilt !  Probation

!  Complete a period of supervision by the court to avoid being sentenced

!  Conditions of probation ordered by the judge and supervised by probation officer

!  Educate judges, DAs, and probation officers

Legal Defenses

!  Lack of criminal responsibility & competence to stand trial !  Traditional avenues for mental health considerations !  Criminal responsibility

!  Ability to conform actions in accordance with an understanding of the law !  Competency

!  Ability to understand the court process !  Ability to communicate with lawyer

!  Clients with ASD do not usually fall into these categories !  Mental impairment short of insanity

!  Committing a criminal act usually requires proof of mens rea, or mental state (intention/purpose, knowledge, recklessness, negligence)

!  ASD may impact mental state

Avoiding Entry into the System

!  Educating the police in advance !  Arrange a meeting !  Training

!  Call for hospitalization / mental health concern

!  Inform 911/dispatch/officer !  Educating ASD client how to interact with

police

Restraining Orders/HPOs

!  ROs: against a family or household member where actual or attempted physical or sexual abuse

!  HPOs: between any two people; three or more instances of harassing conduct; sexual assault; stalking

!  Emergency (temporary) v. permanent !  Emergency: 10 days – judge may only hear complaining

party !  Permanent: 1 year – judge must hear both parties

!  Typical conditions in AS cases !  Stay away from a person or place !  No contact or abuse or person

Issues

!  Those with ASD have all the same legal rights and responsibilities as those who do not

!  Expert clinical support for legal arguments !  When sharing information about ASD is a

benefit or risk !  Clinical services as probation conditions

Thank you!

Peter A. Hahn, Esq. 55 Chapel Street, Suite 301

Newton, Massachusetts 02458 617-413-3973

peter@peterhahnlaw.com