Published on 12, July, 2020
As a person with Autism Spectrum Disorder, I am afraid that I could commit petty sexual crime without mens rea, because I don't understand some body languages very well, specifically body languages that are supposed to be simple to understand, and I don't understand mixed messages very well, even though it's obvious.
I get scared that I can't agree or disagree if I am being inappropriate, even when my friends say that I am a good friend to them.
I know that studies say that people with Autism Spectrum Disorder are more likely to be victims than being perpetrators, but the problem is crime is a very broad term, and you need social skills to follow specific laws. Lacking social skills can highten the risk for petty criminal behavior, specifically related to invading boundaries.
I sometimes become violent and very stressed when I am in a completely different environment, and at the moment, I don't feel safe, but to others, I am seen as a criminal. It's embarrassing!
Your concerns are not unreasonable. Mens Rea is built into a lot of our laws including the definition of many sexual crimes (to varying degrees). So in theory the 'innocent mind' defence for an autistic person who's made a social gaff should be valid in many legal situations. But in practice police men and lawyers often don't understand the ways autism effects autistic people perception of the world and they may not appreciate the importance of the mens rea in the offence.
I not recommending this particular solicitor (although they are accredited by NAS) but they have a number of case studies in their website where they have defenced autistic people accused of sex crimes often because of a social misunderstanding. This clearly is a problem some autistic people struggle with. (case 1, case 2) Another example might be the Bowerman v B & Q PLC [2005] (westlaw WL 7863629) case. Where an employment tribunal ruled that defining 'unintentional sexual harassment' as gross misconduct amounted to discrimination against an autistic man.
I think there is a desire to try and pretend this isn't an issue. One phrase that gets wheeled out on a regular basis is 'autism mustn't be used as an excuse.' Of course the people saying this are usually very keen for autism to be an excuse for the behaviour of children, an autistic student kicking their teachers shins during a melt down for example. But for some reason they believe that the neurology of autistic people suddenly morphs at the age of 18 and autism is no longer a factor in say an autistic person creeping out a stranger by flirting with them in a bar.
There are autistic people who don't have issues around this (I'm thinking largely the disproportionately large fraction of autistic people who consider themselves asexual) who would just like this issue to go away. There are those who don't want their autism associated with drama over accusations (even if unfair accusations) of sexual misconduct. There are others who believe its not the right time to draw attention to this issue lest it hurt the wider cause of improving autistic rights. I for one disagree. There is a real need to be honest about how confusion around social communication can make autistic people vulnerable to unfair and occasionally even malicious accusations of sexual misconduct. The topic needs to be brought into the public discourse around autism.
That makes sense.