Suicide and ADHD

'The Dark Side of ADHD: Factors Associated With Suicide Attempts Among Those With ADHD in a National Representative Canadian Sample' by Esme Fuller-Thomson, Raphaël Nahar Rivière, Lauren Carrique and Senyo Agbeyaka in (2020) Archives of Suicide Research comments 

This study investigated the prevalence and odds of suicide attempts among adults with attention deficit hyperactivity disorder (ADHD) compared to those without and identified factors associated with suicide attempts among adults with ADHD. 

Methods 

Secondary analysis of the nationally representative Canadian Community Health Survey–Mental Health (CCHS-MH) (n = 21,744 adults, of whom 529 had ADHD). Respondents were asked whether they received an ADHD diagnosis from a health care professional. Lifetime suicide attempt was based on self-report. 

Results 

Adults with ADHD were much more likely to have attempted suicide than those without (14.0% vs. 2.7%). One in four women with ADHD have attempted suicide. Sixty percent of the association between ADHD and attempted suicide was attenuated when lifetime history of depression and anxiety disorders were taken into account. Female gender, lower education attainment, substance abuse, lifetime history of depression, and childhood exposure to chronic parental domestic violence were found to be independent correlates of lifetime suicide attempts among those with ADHD.

The authors state

Attention deficit hyperactivity disorder (ADHD) is a complex mental illness that impacts several domains of a person’s life. The global prevalence of childhood ADHD has been estimated to be between 2% and 7%, and it is the third most common mental health condition affecting young people (Sayal, Prasad, Daley, Ford, & Coghill, 2018). The prevalence of ADHD in adults has been estimated to be between 2.9% in Canada (Hesson & Fowler, 2018) and 4.3% in the U.S. (London & Landes, 2019). ADHD is characterized by excessive and impaired levels of impulsivity, overactivity, and inattention (Polanczyk, Salum, Sugaya, Caye, & Rohde, 2015). With symptoms persisting for 1 in every 23 adults between the ages of 18 and 44 (Kessler et al., 2006), both children and adults with ADHD are more likely than their peers without ADHD to experience a variety of behavioral and mental health problems, in addition to significant difficulties in their social and family life (Agnew-Blais, Seidman, & Buka, 2013; Kessler et al., 2006). 

One of these problems that is of particular concern is the high incidence of suicidal behaviors among those with an ADHD diagnosis (Balazs & Kereszteny, 2017; Giupponi et al., 2018). A large cohort study found that those with a diagnosis of ADHD had 4.7 times higher rate of suicide-related behavior compared to those without an ADHD diagnosis (Fitzgerald, Dalsgaard, Nordentoft, & Erlangsen, 2019). Research also suggests gender differences in the psychopathological profile of ADHD and suicide-related behaviors. For example, females with ADHD are at significantly higher risk for suicidal ideation (Kakuszi, Bitter, & Czobor, 2018). 

As mentioned, ADHD symptoms can persist into adulthood and contribute to ongoing emotional and behavioral problems, including suicidality. A longitudinal study of youth and young adults with ADHD found that by young adulthood, the odds of suicidal ideation were approximately twice that of those without ADHD (Barkley & Fischer, 2005). A nationally representative sample of adults from England found that those with current ADHD had 50% higher odds of having attempted suicide in comparison to adults without (Agosti, Chen, & Levin, 2011). In an American population-based prospective study, the standardized mortality rate for death by suicide by an average age of 27 years was almost five times higher for those who had had ADHD diagnosed in childhood compared to peers without ADHD (Barbaresi et al., 2013). The existing literature seems to indicate that childhood ADHD is associated with an increased risk of suicidality.

Facial Observation and Emotion Scanning

'The Inconsentability of Facial Surveillance' by Evan Selinger and Woodrow Hartzog in (2019) 66 Loyola Law Review 101 comments

 Governments and companies often use consent to justify the use of facial recognition technologies for surveillance. Many proposals for regulating facial recognition technology incorporate consent rules as a way to protect those faces that are being tagged and tracked. But consent is a broken regulatory mechanism for facial surveillance. The individual risks of facial surveillance are impossibly opaque, and our collective autonomy and obscurity interests aren’t captured or served by individual decisions. 

In this article, we argue that facial recognition technologies have a massive and likely fatal consent problem. We reconstruct some of Nancy Kim’s fundamental claims in Consentability: Consent and Its Limits, emphasizing how her consentability framework grants foundational priority to individual and social autonomy, integrates empirical insights into cognitive limitations that significantly impact the quality of human decision-making when granting consent, and identifies social, psychological, and legal impediments that allow the pace and negative consequences of innovation to outstrip the protections of legal regulation. 

We also expand upon Kim’s analysis by arguing that valid consent cannot be given for face surveillance. Even if valid individual consent to face surveillance was possible, permission for such surveillance is in irresolvable conflict with our collective autonomy and obscurity interests. Additionally, there is good reason to be skeptical of consent as the justification for any use of facial recognition technology, including facial characterization, verification, and identification.

'Emotional Expressions Reconsidered: Challenges to Inferring Emotion From Human Facial Movements' by Lisa Feldman Barrett, Ralph Adolphs, Stacy Marsella, Aleix M. Martinez and Seth D Pollak in (2019) 20(1) Psychological Science in the Public Interest comments 

It is commonly assumed that a person’s emotional state can be readily inferred from his or her facial movements, typically called emotional expressions or facial expressions. This assumption influences legal judgments, policy decisions, national security protocols, and educational practices; guides the diagnosis and treatment of psychiatric illness, as well as the development of commercial applications; and pervades everyday social interactions as well as research in other scientific fields such as artificial intelligence, neuroscience, and computer vision. In this article, we survey examples of this widespread assumption, which we refer to as the common view, and we then examine the scientific evidence that tests this view, focusing on the six most popular emotion categories used by consumers of emotion research: anger, disgust, fear, happiness, sadness, and surprise. The available scientific evidence suggests that people do sometimes smile when happy, frown when sad, scowl when angry, and so on, as proposed by the common view, more than what would be expected by chance. Yet how people communicate anger, disgust, fear, happiness, sadness, and surprise varies substantially across cultures, situations, and even across people within a single situation. Furthermore, similar configurations of facial movements variably express instances of more than one emotion category. In fact, a given configuration of facial movements, such as a scowl, often communicates something other than an emotional state. Scientists agree that facial movements convey a range of information and are important for social communication, emotional or otherwise. But our review suggests an urgent need for research that examines how people actually move their faces to express emotions and other social information in the variety of contexts that make up everyday life, as well as careful study of the mechanisms by which people perceive instances of emotion in one another. We make specific research recommendations that will yield a more valid picture of how people move their faces to express emotions and how they infer emotional meaning from facial movements in situations of everyday life. This research is crucial to provide consumers of emotion research with the translational information they require.

The authors argue 

Faces are a ubiquitous part of everyday life for humans. People greet each other with smiles or nods. They have face-to-face conversations on a daily basis, whether in person or via computers. They capture faces with smartphones and tablets, exchanging photos of themselves and of each other on Instagram, Snapchat, and other social-media platforms. The ability to perceive faces is one of the first capacities to emerge after birth: An infant begins to perceive faces within the first few days of life, equipped with a preference for face-like arrangements that allows the brain to wire itself, with experience, to become expert at perceiving faces (Arcaro, Schade, Vincent, Ponce, & Livingstone, 2017; Cassia, Turati, & Simion, 2004; Gandhi, Singh, Swami, Ganesh, & Sinhaet, 2017; Grossmann, 2015; L. B. Smith, Jayaraman, Clerkin, & Yu, 2018; Turati, 2004; but see Young and Burton, 2018, for a more qualified claim). Faces offer a rich, salient source of information for navigating the social world: They play a role in deciding whom to love, whom to trust, whom to help, and who is found guilty of a crime (Todorov, 2017; Zebrowitz, 1997, 2017; Zhang, Chen, & Yang, 2018). 

Beginning with the ancient Greeks (Aristotle, in the 4th century BCE) and Romans (Cicero), various cultures have viewed the human face as a window on the mind. But to what extent can a raised eyebrow, a curled lip, or a narrowed eye reveal what someone is thinking or feeling, allowing a perceiver’s brain to guess what that someone will do next? The answers to these questions have major consequences for human outcomes as they unfold in the living room, the classroom, the courtroom, and even on the battlefield. They also powerfully shape the direction of research in a broad array of scientific fields, from basic neuroscience to psychiatry. 

Understanding what facial movements might reveal about a person’s emotions is made more urgent by the fact that many people believe they already know. Specific configurations of facial-muscle movements appear as if they summarily broadcast or display a person’s emotions, which is why they are routinely referred to as emotional expressions and facial expressions. A simple Google search for the phrase “emotional facial expressions” (see Box 1 in the Supplemental Material available online) reveals the ubiquity with which, at least in certain parts of the world, people believe that certain emotion categories are reliably signaled or revealed by certain facial-muscle movement configurations—a set of beliefs we refer to as the common view (also called the classical view; L. F. Barrett, 2017b). Likewise, many cultural products testify to the common view. Here are several examples:

• Technology companies are investing tremendous resources to figure out how to objectively “read” emotions in people by detecting their presumed facial expressions, such as scowling faces, frowning faces, and smiling faces, in an automated fashion. Several companies claim to have already done it (e.g., Affectiva.com, 2018; Microsoft Azure, 2018). For example, Microsoft’s Emotion API promises to take video images of a person’s face to detect what that individual is feeling. Microsoft’s website states that its software “integrates emotion recognition, returning the confidence across a set of emotions . . . such as anger, contempt, disgust, fear, happiness, neutral, sadness, and surprise. These emotions are understood to be cross-culturally and universally communicated with particular facial expressions” (screen 3). 

• Countless electronic messages are annotated with emojis or emoticons that are schematized versions of the proposed facial expressions for various emotion categories (Emojipedia.org, 2019). 

• Putative emotional expressions are taught to preschool children by displaying scowling faces, frowning faces, smiling faces, and so on, in posters (e.g., use “feeling chart for children” in a Google image search), games (e.g., Miniland emotion games; Miniland Group, 2019), books (e.g., Cain, 2000; T. Parr, 2005), and episodes of Sesame Street (among many examples, see Morenoff, 2014; Pliskin, 2015; Valentine & Lehmann, 2015). 

• Television shows (e.g., Lie to Me; Baum & Grazer, 2009), movies (e.g., Inside Out; Docter, Del Carmen, LeFauve, Cooley, and Lassetter, 2015), and documentaries (e.g., The Human Face, produced by the British Broadcasting Company; Cleese, Erskine, & Stewart, 2001) customarily depict certain facial configurations as universal expressions of emotions. 

• Magazine and newspaper articles routinely feature stories in kind: facial configurations depicting a scowl are referred to as “expressions of anger,” facial configurations depicting a smile are referred to as “expressions of happiness,” facial configurations depicting a frown are referred to as “expressions of sadness,” and so on.  

• Agents of the U.S. Federal Bureau of Investigation (FBI) and the Transportation Security Administration (TSA) were trained to detect emotions and other intentions using these facial configurations, with the goal of identifying and thwarting terrorists (R. Heilig, special agent with the FBI, personal communication, December 15, 2014; L. F. Barrett, 2017c). 

• The facial configurations that supposedly diagnose emotional states also figure prominently in the diagnosis and treatment of psychiatric disorders. One of the most widely used tasks in autism research, the Reading the Mind in the Eyes Test, asks test takers to match photos of the upper (eye) region of a posed facial configuration with specific mental state words, including emotion words (Baron-Cohen, Wheelwright, Hill, Raste, & Plumb, 2001). Treatment plans for people living with autism and other brain disorders often include learning to recognize these facial configurations as emotional expressions (Baron-Cohen, Golan, Wheelwright, & Hill, 2004; Kouo & Egel, 2016). This training does not generalize well to real-world skills, however (Berggren et al., 2018; Kouo & Egel, 2016). 

• “Reading” the emotions of a defendant — in the words of Supreme Court Justice Anthony Kennedy, to “know the heart and mind of the offender” (Riggins v. Nevada, 1992, p. 142) — is one pillar of a fair trial in the U.S. legal system and in many legal systems in the Western world. Legal actors such as jurors and judges routinely rely on facial movements to determine the guilt and remorse of a defendant (e.g., Bandes, 2014; Zebrowitz, 1997). For example, defendants who are perceived as untrustworthy receive harsher sentences than they otherwise would (J. P. Wilson & Rule, 2015, 2016), and such perceptions are more likely when a person appears to be angry (i.e., the person’s facial structure looks similar to the hypothesized facial expression of anger, which is a scowl; Todorov, 2017).

An incorrect inference about defendants’ emotional state can cost them their children, their freedom, or even their lives (for recent examples, see L. F. Barrett, 2017b, beginning on page 183). 

But can a person’s emotional state be reasonably inferred from that person’s facial movements? In this article, we offer a systematic review of the evidence, testing the common view that instances of an emotion category are signaled with a distinctive configuration of facial movements that has enough reliability and specificity to serve as a diagnostic marker of those instances. We focus our review on evidence pertaining to six emotion categories that have received the lion’s share of attention in scientific research—anger, disgust, fear, happiness, sadness, and surprise—and that, correspondingly, are the focus of the common view (as evidenced by our Google search, summarized in Box 1 in the Supplemental Material). Our conclusions apply, however, to all emotion categories that have thus far been scientifically studied. We open the article with a brief discussion of its scope, approach, and intended audience. We then summarize evidence on how people actually move their faces during episodes of emotion, referred to as studies of expression production, following which we examine evidence on which emotions are actually inferred from looking at facial movements, referred to as studies of emotion perception. We identify three key shortcomings in the scientific research that have contributed to a general misunderstanding about how emotions are expressed and perceived in facial movements and that limit the translation of this scientific evidence for other uses:

• Limited reliability (i.e., instances of the same emotion category are neither reliably expressed through nor perceived from a common set of facial movements). 

• Lack of specificity (i.e., there is no unique mapping between a configuration of facial movements and instances of an emotion category). 

• Limited generalizability (i.e., the effects of context and culture have not been sufficiently documented and accounted for). 

We then discuss our conclusions, followed by proposals for consumers on how they might use the existing scientific literature. We also provide recommendations for future research on emotion production and perception with consumers of that research in mind. We have included additional detail on some topics of import or interest in the Supplemental Material.

Difference

The national Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability has released an issues paper on Health care for people with cognitive disability, commenting

Health is a key area of inquiry for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission). People with disability may be subject to violence, abuse, neglect and exploitation in health settings, and the denial of the right to health care may also be a form of neglect. The Royal Commission wants to understand the experiences of people with cognitive disability in accessing or receiving health care. People with cognitive disability include people with intellectual disability, autism, acquired brain injury or dementia. People with cognitive disability may experience poor health outcomes due to barriers in the health system. Research suggests that people with cognitive disability are more likely to suffer an avoidable death that could have been prevented through appropriate health care. 

The purpose of this paper is to invite information and discussion from the public on the key issues regarding health care and services for people with cognitive disability that require exploration by the Royal Commission, as well as examples of good practice. We understand that health care of people with cognitive disability is only one issue we need to consider. We invite your ideas on other matters related to health that we should be examining. Based on your feedback and our research, broader experiences of people with disability in the health system will be addressed in issues papers in 2020. ... 

A human rights-based approach 

Our terms of reference recognise that Australia has international obligations to take appropriate legislative, administrative and other measures to promote the human rights of people with disability. The right to health is provided for in the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and Article 25 recognises the right to the highest attainable standard of health, without discrimination on the basis of disability. The CRPD also provides obligations in respect of habilitation and rehabilitation in Article 26. Australia is also party to four other international human rights instruments which recognise the right to health. The right to health does not simply mean the right to ‘be healthy’. Rather, the right to health contains both entitlements and freedoms. 

Entitlements include the right to essential primary health care. Freedoms include the right to:

• non-discrimination 

• control one's health and body, including sexual and reproductive freedom 

• free and informed consent 

• be free from non-consensual medical treatment and experimentation 

• be free from torture or cruel, inhuman or degrading treatment or punishment. 

The particular experience of people with cognitive disability was addressed by the United Nations Committee on the Rights of Persons with Disabilities (the UN Committee) in its recent Concluding Observations on the combined second and third periodic reports of Australia. The UN Committee recommended that Australia adhere to Article 25 to ensure that all persons with disabilities and children with disabilities have access to information, on an equal basis with others, and to affordable, accessible, quality and culturally-sensitive health services and equipment … with particular consideration for … persons with intellectual or psychosocial disabilities. 

Why is the Royal Commission looking at health care for people with cognitive disability? 

Health is critical to support the independence and inclusion of people with disability. It is an enabling right. If a person’s health needs are not met, then children and adults with disability may be unable to attend school, access employment opportunities or participate in society. However, research shows that, since the mid-1990s, there has been little progress to address the barriers faced by people with cognitive disability when accessing health care. 

Health for First Nations people encompasses spiritual, cultural, emotional and social wellbeing. It recognises that belonging and deep connections to land, culture, spirituality, family, and community are important for wellbeing, and is influenced by past events. There is limited research on the multiple barriers to health care for First Nations people with cognitive disability, although research suggests that non-Indigenous Australians with disability receive services that First Nations people with disability do not. Culturally and linguistically diverse people with disability may also experience unique barriers in accessing health care. This requires further research and investigation. 

Some issues and barriers 

There are a range of issues and barriers that people with cognitive disability may experience with the health system, including mental health and dental and oral health. People with cognitive disability report that medical professionals often don’t take the time to explain health issues in accessible ways. This can make it difficult for people with cognitive disability to understand examinations, diagnosis and treatment options and may lead to these not being performed or being performed without informed consent. Some other examples of barriers and issues are outlined below. 

These barriers and issues may occur in all health care settings, including hospitals, general practitioner’s (GP) clinics, medical centres, community health centres and specialist or consultant offices. 

• Barriers to health care for people with cognitive disability can include: • communication and physical barriers • cost and funding • rural and remote access • training of health and mental health professionals. 

• Attitudes and assumptions, which may influence issues such as: • diagnostic overshadowing – where a health professional attributes symptoms to a person’s disability rather than to a health issue • delayed diagnoses/misdiagnoses • prescribing practices, over-prescription, and restrictive practices • lack of sexual and reproductive health care. 

Since the National Disability Insurance Scheme began, participants, including people with cognitive disability, often report significant issues with the interaction between health systems and the NDIS. 

Some issues include:

• gaps in funding 

• gaps in supports, including support workers and communication supports 

• lack of coordination between the health system and the NDIS 

• inconsistent information • delays in hospital discharge planning that mean people are ‘stuck’ in hospital. 

The Royal Commission is also interested in hearing about other issues and barriers that people with cognitive disability experience in accessing or receiving health care. 

Questions 

Question 1: 

What do you think about the quality of health care for people with cognitive disability? 

Question 2: 

A. If you are a person with cognitive disability, can you tell us about any problems you have had in getting health care? 

B. Can you tell us about any barriers that people with cognitive disability have experienced in accessing health care? 

Question 3: 

A. If you are a person with cognitive disability, can you tell us about any problems you have had with the NDIS and getting health care? 

B. Can you tell us about any problems that people with cognitive disability have had with the NDIS and accessing health care? 

Question 4: 

A. What do you think should be done to fix the problems people with cognitive disability have in getting health care? 

B. How could the NDIS and health systems work better for people with cognitive disability? 

Question 5: 

Why do people with cognitive disability experience violence, abuse, neglect or exploitation in health care? What are the causes? 

Question 6: 

A. Is the violence, abuse, neglect or exploitation that people with cognitive disability experience, different in doctor’s or GP’s surgeries, medical centres, hospitals, specialists or consultants? 

B. Is the violence, abuse, neglect or exploitation that people with cognitive disability experience, different in public, private or not-for-profit health care? 

Question 7: 

A. Are experiences of violence, abuse, neglect or exploitation in health care different for particular groups of people with cognitive disability? 

B. Are experiences of violence, abuse, neglect or exploitation in health care different for First Nations and culturally and linguistically diverse people with cognitive disability? 

C. How does a person’s gender, age, or cultural or sexual identity impact on people with cognitive disability getting health care? 

Question 8: 

A. What could prevent people with disability experiencing violence, abuse, neglect or exploitation in health care? 

B. What would make a person with cognitive disability feel safe when getting health care? 

C. Can you give us any examples? 

Question 9: 

A. What would stop a person with cognitive disability reporting violence, abuse, neglect or exploitation in health care? 

B. What would make it easier for a person with cognitive disability to complain about violence, abuse, neglect or exploitation in health care? 

Question 10: 

Have we missed anything? What else should we know?

Neurolaw

'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.

Psychological Disability

The Australian Bureau of Statistics has released a report on data from the 2012 ABS Survey of Disability, Ageing and Carers (SDAC).

The SDAC is

designed to measure the prevalence of disability in Australia, as well as inform around the socio-economic characteristics and the need for support by people with disability. 

It deals with psychological disability in terms of people who reported:

• A nervous or emotional condition which causes restrictions in everyday activities that has lasted, or is expected to last for six months or more; or 
• A mental illness for which help or supervision is required that has lasted, or is expected to last for six months or more; or 
• A brain injury, including stroke, which results in a mental illness or nervous and emotional condition which causes restrictions in everyday activities. 

The ABS indicates that key results were -

• Of all people with any type of disability, 18.5% had a psychological disability. 
• 3.4% of Australians (770,500 people) reported having a psychological disability, with similar rates for men and women. This was an increase from 2.8% (606,000 people) in 2009. 
• For women, the prevalence of psychological disability increased steadily with age, with a rate of one in every five women aged 85 years and over (20.2%). Although prevalence generally increased with age, there was a significant decrease for women aged 65-74 years (3.3%) whose rate was on par with women aged 35-44 years (2.9%). 
• For men, there was a higher prevalence (compared with women) in the younger age groups, with boys aged 0-14 years three times as likely as girls of a similar age to have a psychological disability (2.2% compared with 0.7%), attributed to the higher prevalence of autism in males in this age group. Overall, the prevalence for men also increased with age.
• Of those people with a psychological disability,  four in ten reported profound levels of core activity limitation, and a further two in ten reported severe core activity limitations. 
• A wide range of long-term health conditions and impairments coexist with psychological disability -  the majority of people who reported a psychological disability reported having one or more other disabling conditions. 
• 96% of people with psychological disability reported needing assistance or experiencing difficulty in at least one of the broad activity areas of everyday life. 
• 1.8% of people with psychological disability who reported needing assistance did not have their need met at all.
• There is lower participation in education and employment for people with psychological disability, compared with those with no disability.

Autism

In State of Western Australia v Mack [2011] WASC 127 the WA Supreme Court has found an autistic man, accused of murdering his mother, is fit to stand trial (albeit before a judge without a jury and with the defendant being allowed to attend trial by a video link). The Court found that the man's demeanour and detachment from his trial process was deliberate rather than a result of his autism.

In WA s 9 of the  Criminal Law (Mentally Impaired Accused) Act 1996 (WA) defines 'Mental unfitness to stand trial'  as -

An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is -

(a) unable to understand the nature of the charge;

(b) unable to understand the requirement to plead to the charge or the effect of a plea;

(c) unable to understand the purpose of a trial;

(d) unable to understand or exercise the right to challenge jurors;

(e) unable to follow the course of the trial;

(f) unable to understand the substantial effect of evidence presented by the prosecution in the trial; or

(g) unable to properly defend the charge.

After considering 9(e) and 9(g) in particular McKechnie J found at 41-42 that Mack can stand trial.

My observation of the accused certainly confirms that his behaviour is unusual. I am satisfied that the accused has a mental impairment due to autism. The question is whether his detachment from his trial process manifested by apparent nonresponsiveness is primarily due to his autism.

There is no doubt that a trial judge will have to be responsive to the problems that the accused's autism raise in relation to the conduct of the trial to ensure that the trial is fair and that the accused is given adequate opportunity to instruct his counsel and make a proper defence. ... I am not persuaded that the marked difference between the accused's presentation in the VROI's and his appearance in court is the result of a deterioration due to lifelong autism. Also, notwithstanding Dr Hall's explanation about the telephone call made by the accused a relatively short time before his interview, an equally plausible explanation is that the accused has decided not to engage in the trial process. The telephone call showed a good grasp of the issue he was talking about. It is likely that the accused's current presentation is more as a result of choice coupled with his autism than a result simply of his mental impairment. Applying the legal principles I have outlined to the evidence I prefer, I find that, provided the trial process accommodates the accused's autism, he is fit and able to stand trial. I am not persuaded that the accused's autism is such a contributor to his presentation that he is unfit for trial.

In finding for trial by judge alone he stated at 43-44 that

The State did not oppose the application for trial by judge alone. That is never determinative of the issue, it being a matter for a judge in the interests of justice. However, the position of the prosecution is naturally a matter of significance and weight. The principles governing an application for trial by judge alone have been recently restated in The State of Western Australia v Rayney [2011] WASC 326. The present circumstances are somewhat different from those that have arisen in other cases. In this case the accused's autism, while falling short of an impairment rendering him unfit for trial, will necessarily make a trial more protracted and may require a greater number of adjournments than normal. If the accused participates in the trial via video link from prison this will lead to frequent adjournments, possibly lengthy, while instructions are taken. Such adjournments are unfair burden on a jury both in the time that will have to be set aside for the trial and the fragmentary nature in which the evidence may have to be presented.

The accused also raises the possibility that the accused's unusual personal characteristics may cause him some prejudice in that the jury are distracted by his behaviour or draw adverse inferences against him as a result of such behaviour. I put little weight on this submission as I consider that a jury, properly instructed, would be able to put aside such matters and concentrate on the evidence in the case. However, I conclude that because of the accused's autism and its impact on the trial process generally, the interests of justice require a trial by judge alone.

An affidavit by Mack's representative had stated -

I first met the accused at Hakea Prison on 31 October 2011. It was immediately apparent that the accused had a number of unusual personal characteristics, including:

• The absence of eye contact, in that his head remained bowed throughout the interview. 

• The robotic manner in which he spoke.

• The shortness of his sentences and the absence of any fluent conversation with me.

• The inability to develop any form of rapport throughout the interview.

At a subsequent meeting at Hakea Prison on 2 February 2012, the accused advised that he would not participate in the trial in any way if he had to attend court in person. He stated that he would only participate in the trial if he was able to appear by video-link from Hakea Prison.

Apart from consideration of psychiatric evidence (by Febbo and Hall) McKechnie J noted -

I ordered that the accused should attend the hearing so that I could see him. The accused entered court 6 in company of security officers. He entered the court without eye contact and after being directed, hurried into the dock and sat down. He stood when asked but made no response to an enquiry about his name. He then sat and for the remainder of the hearing averting all eye contact, keeping his head down, staring at the corner of the dock. He was occasionally twitching or shaking. 

The accused was interviewed by police on 26 August 2010, 2 September 2010 and 10 September 2010. 

In the first two interviews the accused made eye contact with the interviewer. His answers are coherent and appropriate in that he is able to freely convey by his answer that which he wishes to convey. His mood is congruent with his situation. In the final interview on 10 September 2010, his eye contact with interviewers is less although still observable but he spends more time looking to his right at the edge of the table. That said, however, his answers remained logical and coherent. At one point he makes a light and joking remark about an officer's tie. 

On 19 October 2011, the accused telephoned his brother, Adrian, and spoke generally about the case. The accused's tone was appropriate, his thoughts and ideas coherent. He displayed a good grasp of the issues about which he was speaking which related to possible courses of action relative to his litigation. While on occasion there was a slight stammer, the overall impression did not give rise to any indication of an unfitness to plead.