Sexual offending is prosecuted under the Sexual Offences Act (2003) and the Criminal Justice Act (2003), however to be eligible for prosecution a defendant must have ‘mens rea’ and be ‘fit to plead’. Fitness to plead requires the defendant to be able to understand the process of the Court, specifically being “capable of contributing to the whole process of his
or her trial, starting with entering a plea” (British Psychological Society, 2006, p68). This
ability may be compromised in those with intellectual disabilities and/or ASD as
‘contributing’ refers to the ability to (i) understand the concept of a guilty or not guilty plea, (ii) following the proceedings, (iii) know they can challenge a juror if they believe them to be biased, (iv) question the evidence, and (v) instruct their counsel.
If an individual is found unfit to plead and a trial of the facts takes place (i.e. to ascertain if the alleged incident/act took place rather than guilt about wrongdoing), in finding the individual guilty of the offence the court has a number of options at its disposal. These include: a hospital order through the Mental Health Act (2007), a Supervision Order, where
the individual is placed under the supervision of a social worker or probation officer; and, Absolute or Conditional Discharge (where it is felt the process of going to court has been sufficient punishment).
A defendant with ASD, with or without an intellectual disability, can however be deemed ‘fit to plead’ and are then subject to Crown Prosecution Service proceedings. The difficulties experienced by those with ASD within the Criminal Justice System have been recognised on numerous levels, from arrest and charging, to court proceeding and detention. For
example, Crane et al. (2016) surveyed police officers about their interactions with autistic individuals and members of the autistic community who have engaged with the police. Police officers interviewed identified their lack of, and need for, training in engaging and interviewing those with ASD, as well as the challenges in managing the needs, expectations and adaptions for those on the spectrum (as victims and suspects). Members of the autistic community in the same study reported largely negative responses to questions regarding their engagement with the police (69-74% unsatisfactory, 13-15% satisfactory, 4-13% neutral/unsure), along with feelings of victimisation and discrimination in their encounters (Crane et al., 2016).
As identified in Chapter Two (Autism Spectrum Conditions), individuals with Asperger’s Syndrome are less likely than individuals with an intellectual disability to be diverted from the Criminal Justice System, however, despite higher verbal abilities and possible absence of intellectual disability, they are still vulnerable throughout the criminal process. The uneven cognitive profile often seen in individuals with ASD can result in overestimations of ability by police and others, especially in those with Asperger’s Syndrome (Frith, 2004). For example, apparent verbal proficiency may lead to presumptions of a higher comprehension level, particularly in relation to social norms or etiquette. As such, the presence of Asperger’s Syndrome may not have been apparent or disclosed upon arrest or caution, and therefore not acknowledged during the process. In a survey of 33 barristers and solicitors about their engagements with autistic individuals, Maras et al. (2017) reported that 13 of the sample (92%) had experience of a defendant disclosing their diagnosis of ASD at the trial. An undiagnosed or undisclosed diagnosis of ASD has the potential for reducing the opportunities to identify any need of an appropriate adult, use of particular
questioning/police interviewing styles and/or adjustments during court or to the environment (see below).
The National Autistic Society have produced a Guide for Criminal Justice Professionals (National Autistic Society, 2008) in collaboration with individuals on the spectrum and their families. Despite wider recognition and available guidance, some legal professionals still report feeling ill-equipped in their engagements with offenders with ASD and members of the autistic community report variability in their experiences of the Criminal Justice System. For example, in Maras et al. (2017) sixty-eight percent of those interviewed reported
interacting with an autistic individual as a defendant, yet only 31% (n=7) had undergone training on ASD. In the same study, only twenty-eight individuals with ASD reported that they were offered special measures e.g. a screen around the witness box, use of video link for giving evidence or the removal of gowns/wigs, etc.
The introduction of the Autism Act (2009) and subsequent updates (2014), along with increased recognition of offenders with ASD, has led to the development of specific guidance and information regarding defendants with ASD. However, as illustrated above, these are yet to be applied consistently.
Individuals with ASD who sexually offend may follow a number of pathways through the Criminal Justice System. For example, in addition to custodial sentences, offenders may be diverted through Liaison and Diversion services, given a community sentence or detained under the Mental Health Act (2007). The potential pathways for adults with ASD who display sexual offending behaviours are well established (if not always consistent) and are illustrated in Figure 9: Pathways for offenders with intellectual and developmental
4.4 The Criminal Justice System and Children and Young People who Sexually Offend or