'A legal analysis of Australian criminal cases involving defendants with
autism spectrum disorder charged with online sexual offending' by
Clare S. Allelya, Sally Kennedy and Ian Warren in (2019) 66
International Journal of Law and Psychiatry 101456
examines how the symptomology of the small number of individuals with autism spectrum disorder
(ASD) charged with online sexual offenses in Australia is established during legal arguments and conceived by
the judiciary to impact legal liability and offending behavior. This study aims to provide empirical support for
the proposition that judicial discourses regarding the connection between ASD and online sexual offending,
including conduct related to child exploitation material (CEM), have little bearing on overall questions of
criminal liability or the use of alternative penal dispositions. It does so by exploring a sample of nine recent
Australian criminal cases, involving ten rulings, that examine how evidence of ASD is raised in legal arguments
in ways that suggest a diagnosed condition may have contributed significantly to the alleged wrongdoing. We
conclude by suggesting current Australian judicial practice requires more sensitivity to the impact of clinical
factors associated with ASD in shaping alternative supervisory and non-custodial dispositions for individuals
convicted of online sexual offenses.
The authors argue
Autism spectrum disorders (ASDs) are neurodevelopmental conditions
characterized by restricted repetitive behaviors and impairments in reciprocal
social interactions and communication (Wing, 1997). The fifth
edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-
5) (American Psychiatric Association [APA], 2013) identifies two core areas
of impairment in ASD, which are found to vary across individuals, symptoms
and levels of severity. These two core domains are persistent impairments
in social communication and interaction, and restricted, repetitive
patterns of behavior, interests, or activities (APA, 2013). It is imperative
these features inherent in ASD are recognized, diagnosed and understood,
specifically in terms of how they can contribute to certain types of criminal
offending, and sex offenses in particular (Ray, Marks, & Bray-Garretson,
2004). For example, repetitive or obsessive behaviors may contribute to
offenses related to child exploitation material (CEM) by individuals with
ASD (Mogavero, 2016). However, there is currently a lack of clear empirical
research exploring this association.
What is clear is many individuals with ASD are found to have
substantial collections of pornographic material, often involving
children, or thousands of unopened computer files that are likely to
have been gathered as part of the ritualistic nature of ASD. This can
raise the prospect of criminal prosecution and potentially lengthy periods
of incarceration or community supervision. However, individuals
with ASD can be unaware of some of the broader issues regarding CEM,
including where and how the files were obtained, who might be able to
access them and the consequences for the minors depicted in the
images. Crucially, they may not even consider something that is illegal
to be so freely accessible on the internet given their literal view of the
world (Mesibov & Sreckovic, 2017).
The case of Mr. C, reported by Brendel, Bodkin, Hauptman, and
Ornstein (2002), aptly illustrates how ASD can be linked to an excessive
obsession with pornography. Mr. C spent hours with his collection of
thousands of pornographic videos and regularly accessed pornographic
websites. He also had a huge collection of paper dolls that were created
by using images from both mainstream and pornographic magazines
that he engaged with for at least 5 hours per day. Mr. C reported that inadvertently view CEM because
of their inability to correctly guess the age of the person(s) in the
images, which can be exacerbated by the fact that sometimes the
physical distinctions between an adult and a child can be blurry. These
issues need to be considered given the illegality and severity of CEM
offenses are determined by the apparent age of the victims in the
images possessed by the offender (Mahoney, 2009).
While it is clear behavioral traits associated with ASD have an impact
on reducing legal culpability and sentences for various types of
offenses (Allely and Creaby-Attwood, 2016; Creaby-Attwood and Allely,
2017; Freckelton, 2011), there is limited research examining broader
trends for specific types of sexual offending in English-speaking jurisdictions.
Dubin and Horowitz (2017) highlight this lack of research is
closely related to the general lack of awareness amongst law enforcement
agencies, criminal defense lawyers, prosecutors or judges that
clients or suspects might have an intellectual disability, such as ASD,
that can significantly affect their interactions with justice professionals.
Such conceptions of procedural fairness, as well as knowledge of the
importance of appropriate diversionary strategies, is generally absent in
formal legal records. While some behavioral factors related to ASD are
recognized as potential mitigating explanations for certain forms of
transnational online financial crime or computer hacking (Kibbie, 2012;
Mann, Warren, and Kennedy, 2018), they also have more immediate
implications given the recognition that innate vulnerabilities associated
with any high-functioning males with ASD (Cooper and Allely, 2017) may
increase the likelihood of being accused of sexual offenses, including
the possession of CEM (Dubin and Horowitz, 2017; Freckelton, 2011).
This range of intersecting factors requires detailed consideration,
especially when men diagnosed with ASD are detected and prosecuted
for accessing CEM. This is particularly salient in light of the potential
moral reprobation associated with any actual or virtual sexual activity
with children, which can readily dilute reasoned concern over the alleged
offender’s neurological vulnerabilities. Our objective is to contribute
to the growing body of critical knowledge about these important
facets of neurolaw (McCay and Ryan, 2018), to determine how the various
neurological and behavioural aspects of ASD emerge in formal
legal arguments and judicial discourses that inform how criminal liability
and sentences are determined for CEM offences.
these activities helped to reduce his anxiety and make up for an “unrewarding
life”, which included a “sexual lack” in his relationship
(Brendel et al., 2002, p. 167).
'The Frailties of Human Memory the Accused's Right to Accurate Procedures' (University of Melbourne Legal Studies Research Paper No. 825, 2019) by
Andrew J. Roberts
comments
It is often claimed that the criminal justice system has not taken sufficient account of the findings of experimental studies that have revealed much about the limitations and vulnerabilities of human memory and cognition. Indeed some have suggested that those responsible for the administration of justice are generally disinterested in what psychologists have to say about the nature of memory and its frailties, and unwilling to consider the adequacy of legal rules and practices in light of what is known about these matters.
