A neurodiversity-based comparison of cases involving the use of verbal and non-verbal communication used or presented by autistic defendants experiencing alexithymia or echolalia as evidence of guilt.
Matthew McCallion is a 3rd year PhD student at the School of Law, Queen’s University Belfast. His thesis focuses on how courts determine the criminal liability of autistic defendants, with a particular focus on solving the tension between the objective nature of criminal liability and emerging theories on neurodiversity.
Email: mmccallion13@qub.ac.uk
Introduction
It goes without saying that the right to silence is one of the paramount principles found in the interaction of human rights law and criminal law. (PACE Code C; Miranda warning). Some choose to exercise this right, whilst others elect to describe their side of the story to the authorities.
Difficulties arise when the courts must consider prosecution evidence of the verbal or non-verbal communication used or presented by autistic defendants. These issues can be especially seen in cases wherein the autistic defendant is experiencing alexithymia or echolalia.
The term ‘Alexithymia’ was coined in 1973 by psychotherapists John Case Nemiah and Peter Sifneos, from the Greek meaning ‘no words for emotions.’ It is described as ‘a neuropsychological phenomenon characterised by significant challenges in recognising, expressing, and describing one’s own emotions’ (Hogeveen and Grafman, 2021:48, citing Nemiah et al., 1976) and is estimated to affect 50% of autistic persons (i.e., ten times the rate of occurrence among the general population). (Hogeveen and Grafman, 2021:50)
‘Echolalia’ describes ‘the automatic repetition of vocalisations, words, or phrases uttered by another person’ (ICD-11:MB23.9) From the Greek, meaning ‘to echo or repeat speech’, it can be an immediate reaction to a stimulus or can be delayed. (ICD-11; Tager-Flusberg, Paul and Lord, 2005:346–347; Ganos et al., 2012)
It may be seen in cases of autistic people making use of it as a method of processing auditory stimuli when in a state of overwhelm (e.g. during a meltdown). There are three main types of echolalia:
- Functional or Interactive echolalia: Directed towards communication with others;
- Non-interactive echolalia: Occurs for reasons other than communication;
- Mitigated echolalia: Repeats some words, but with changes. It may also include pronoun reversal. (Patra and De Jesus, 2023)
These themes will be examined through a comparison of three cases: State v. Suber (Minnesota, 2008); Ackerley v AG (Isle of Man) (UK Privy Council, 2013); Commonwealth v. Rushin (Virginia, 2019). These cases have been selected to showcase the variations in the approach taken by the courts when applying these characteristics of autism to the criminal law across different common law jurisdictions and how this has evolved over the years.
State v. Suber, No. A06-2438 Minn. Ct. App. (Apr. 8, 2008)
On 9 July 2005 at 2.30pm, Franz Suber was the driver in a minor single-vehicle accident. When questioned by police, he volunteered that he had smoked marijuana at 8pm the night before (Suber, paras. [1] – [2]). The officer noted that – among other observations – Suber moved with ‘slow, deliberate, and “robotic type movements”’ during the field sobriety test (Suber, para. [10]).
Despite admitting on cross-examination that driving impairment resulting from marijuana usage lasts only up to four hours, the police drug expert relied on the field sobriety test when concluding that he had been under the influence of marijuana (Suber, para. [12]). Suber was convicted of second-degree driving under the influence of a controlled substance and sentenced to house arrest, probation, and a fine (Suber, para. [5]).
He appealed, arguing that ‘the evidence was insufficient to prove, beyond a reasonable doubt, that he was under the influence of a controlled substance at the time of the accident.’ Specifically, he contended that his poor performance during the field sobriety test was due to his autism, alongside sleep deprivation (having gone some days without sleep) and that the expert’s evaluation was flawed as a result (Suber, para. [6]).
The Minnesota Court of Appeals allowed the appeal, finding that the police, prosecution, and trial court had failed to consider how Suber’s autism would affect their evaluation of his performance during the field sobriety test (Suber, para. [21]). The Court further held that Suber’s autism and sleep deprivation, coupled with the lack of evidence of marijuana usage leading up to the accident, ‘point to an innocent explanation of Suber’s observed behavior [sic] and suspected indicia of impairment’ (Suber, para. [22]).
Ackerley v HM Attorney General of the Isle of Man [2013] UKPC 26
In May 2010, Giles Ackerley was staying overnight at a house party when he was accused of sexually assaulting a young woman. The complainant’s testimony was that she was awoken ‘by feeling something touching her between her legs’, found her jeggings around her knees, and Ackerley ‘near her feet, kneeling and resting with his elbows on the floor with his head on his hands, and looking directly at her’ (Ackerley, para. [4]).
The woman’s boyfriend then assaulted Ackerley, for which he himself was later convicted. Ackerley fled the house and was eventually found ‘limping and shoeless’ by police. When questioned, he said that ‘he had been to a party and had tried it on with a girl; the boyfriend had then assaulted him.’ When asked who had assaulted him, he replied, ‘I’m making no complaint. It’s my fault. I tried it on with a girl’ (Ackerley, para. [5]).
Later, in police interviews and written statements, he attempted to clarify this remark: ‘I told the police that I thought the trouble was caused by people being very drunk and that a person’s boyfriend thought that I was coming on to his girlfriend’ (Ackerley, para. [8]). He explained that he had difficulties with social communication and ‘read[ing] situations’ (Ackerley, para. [7]).
In May 2011, Ackerley volunteered an addendum statement asserting that he had stumbled and fallen on top of the complainant as he tried to stand up. Addressing the lateness of this account, he explained that it was not unusual for him to remember details long after the event, due to difficulties with organising memory (a feature found in autism).
The trial judge accepted the complainant’s account over Ackerley’s. In addition to several reasons for believing the complainant, he also relied on two aspects of Ackerley’s evidence:
- Ackerley’s assertion – that he did not know at the time why he was being assaulted – was inconsistent with what he first told the police; and
- The ‘extreme lateness’ of his giving an account of accidentally falling on the complainant. (Ackerley, para. [15])
The trial judge convicted Ackerley of Indecent Assault and imposed a suspended sentence. Ackerley appealed to the Staff of Government (Appeal Division), which – after considering medical evidence relating to the social communication aspects of his autism that had not been available at trial – upheld the conviction. He then appealed to the UKPC.
The UKPC dismissed the appeal, holding that the Appeal Division’s conclusions ‘were clearly supported by the evidence as a whole.’ The UKPC further held in obiter that Ackerley’s action were:
‘undoubtedly mitigated by his unfortunate disability, as the suspended sentence imposed upon him rightly recognised. But whatever sympathy anyone must have for the real difficulties under which he labours, … his disability … does not, on the facts of this case, provide any reason for doubting the safety of the conviction.’ (Ackerley, para. [28])
Commonwealth v. Rushin, Virginia Beach Circuit Court (Nov. 6, 2019)
On 4January 2019, Matthew Rushin was driving when he had a minor collision with another car at the entrance to a petrol station. He attempted to turn and re-enter traffic at a median break to return to the scene. His car then swerved into oncoming traffic, and collided with two other cars, resulting in severe injury to an elderly couple. Rushin climbed out of his car and proceeded to experience a meltdown. A passer-by yelled at him, ‘What the [f-word] is wrong with you? You could’ve killed people.’ Rushin replied, ‘I want to be dead’, ‘I should be dead’, or words to that effect. The prosecution understood this response as evidence of suicidal intent.
Rushin was charged with two counts of Malicious Wounding and one count of Hit and Run. His attorneys advised him to plead guilty on all counts, largely based on the precedent set by the Virginia Supreme Court in Stamper v. Commonwealth (1985), ‘that evidence of a criminal defendant’s mental state at the time of the offense [sic] is, in the absence of an insanity defense [sic], irrelevant to the issue of guilt.’ As Rushin was not making use of the insanity defence, he was unable to present medical evidence of his autism to explain his actions and use of language. He was sentenced to 50 years’ imprisonment (40 years suspended; 10 years’ active incarceration).
Terra Vance, an autistic woman and psychology consultant, carried out an in-depth investigation into Rushin’s case, uncovering multiple inconsistencies and failings by the prosecution, along with evidence that the swerve was due to accidental pedal misapplication or a seizure, not suicidal intent. This case led to major public backlash and a tens-of-thousands-strong campaign began calling for Rushin’s freedom. Autism rights groups raised concerns that Rushin may not have received the support he needed to understand what his guilty plea meant. In March 2021, Rushin was released from prison after being granted a conditional pardon by Governor Ralph Northam.
The pardon noted that – regarding the Malicious Wounding conviction – ‘the record lacks the requisite evidence that [he] had the intention of causing that harm’ and that the sentence imposed was much higher than the maximum recommended by the Sentencing Guidelines. This further included such requirements as a conditional lifetime driving ban, a requirement to receive mental health treatment for ten years, and five years’ supervision under a parole officer (Office of the Governor, 2020:54–55).
Conclusion
Having examined these three cases, it is clear just how difficult it has been for courts when dealing with verbal and non-verbal communication used by autistic defendants when determining guilt. This has been particularly seen when the law:
- Has correctly accommodated autistic non-verbal communication: see Suber, where the court found an innocent explanation for the defendant’s body language;
- Completely fails to accommodate for echolalia: see Rushin, where suicidal intent was incorrectly drawn from involuntary pronoun-reversal repetition of questions posed by a third party; and
- May pose a grey area in some cases: see Ackerley, concerning the weight to be given to immediate and delayed testimony and difficulties in explaining perspectives and thoughts (alexithymia).
There are clearly lessons to be learnt by judicial actors, which may be dealt with in the short-term. It is recommended that access to registered intermediaries be extended to vulnerable defendants (Taggart, 2022a), including autistic defendants, to help convey to the court the defendant’s intended explanations hampered by issues stemming from alexithymia and echolalia. That said, questions as to their neutrality in doing so would surely have to be addressed in further discussions. (Taggart, 2022b)
It is also recommended that precedents preventing evidence of an autism diagnosis when not pleading insanity be revisited. This would allow the court to make a properly fair assessment based on all the facts of the defendant’s mindset and actions (Allely et al., 2023:60). Indeed, Stamper has now been effectively overturned legislatively. Since 2021, under certain conditions and if the facts of the case ‘would justify a finding of guilt’, an autistic defendant may petition the court to defer their case, place them on probation, and eventually dismiss the charges if they demonstrate that the alleged crime was ‘caused by or had a direct and substantial relationship to the person’s disorder or disability.’ (Code of Virginia, § 19.2–303.6) The effects of this legislative change would require further discussion.
Other issues to consider for further research include: (i) adverse inferences; (ii) the history of courts in allowing evidence of autism; (iii) autistic characteristics negating criminal elements, including actus reus (Berryessa, 2021:858–860); and (iv) the impact of Article 12 CRPD (concerning ‘equal recognition before the law’).
Regarding the long-term, a more philosophical debate must be held on how criminal law can move away from a purely neurotypical interpretation and adjudication of autistic characteristics and embrace new pathways based on emerging theories arising from the so-called ‘neurodiversity paradigm’. That is the goal of my thesis and to that end I advise the reader to wait patiently for my eventual conclusion.
Bibliography
STATUTES
Code of Virginia, § 19.2–303.6. Available at: https://law.lis.virginia.gov/vacode/title19.2/chapter18/section19.2-303.6/ [Accessed: 12 Oct. 2023].
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Defending Vulnerability 