OPINION: Lawyers should not use autism for future defences
Updated: May 14
Justice Anne Molloy has considered using autism for future not-criminally responsible defences. This decision happened when the 2018 Toronto Van Attack perpetrator, who Molloy now refers to as John Doe, was convicted yesterday.
If some people with autism commit crimes and lawyers use this defence again, it will only further stigmatize autistic people, many of who mean well. People on the spectrum want to feel loved and accepted. They do not want people to associate autism with violence and criminals.
Molloy was wise enough to know that autism did not play a role in Doe's attack. She also carefully looked at factors including Doe's feelings and planning. Doe knew right from wrong and purposely made a bad choice. However, autism should not qualify as a mental disorder for future cases.
People with autism may have difficulties with social skills and adapting to everyday life, but this doesn't mean that they do not understand that it is wrong to kill people. Hallucinations, hearing voices, or not understanding reality are not autism symptoms.
When the Doe trial started in November, many people in the autism community were deeply concerned. Also, many autism advocates spoke out against the not criminally responsible defence. These people must have gotten a huge relief blanket yesterday. They do not want the old feelings from last fall to return. Not only would more autism defences leave the autism community vulnerable to stigma, but it would also hurt surviving victims and the families and friends of victims involved in a crime. It is not fair for these people to be unsure if a criminal who clearly understood their actions will stay behind bars forever.
Some people could argue that if an autistic person has a meltdown and accidentally severely injures a person, they could get a not-criminally responsible defense. During meltdowns, a person does not always have full control of what they are doing. However, this may be in rare and severe cases.
Molloy wrote, “In its severe manifestations, and particularly where there are comorbidities, ASD might cause a person to lack the capacity to appreciate the nature of an action or to know that it is wrong. It is not possible to rule out ASD at this threshold stage by holding that it cannot ever qualify as a mental disorder."
It's good to acknowledge that lawyers should only use severe cases of not understanding wrong actions, especially with co-morbid disorders. However, if a person is impaired enough not to realize that violence is wrong, one should not even call the police in the first place. In this case, they should go to a hospital not only so they can get treated but so there is no media coverage to stigmatize those on the spectrum. It would work best for all parties involved.
If a person knows what they did, whether they have a disorder or not, they are criminally responsible. If a person clearly doesn't understand their actions, they should go to a hospital and not get police, lawyers, or media involved.
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