Setting the stage for the assessment of the criminal liability of autistic defendants in an age of neurodiversity

Courts have long struggled to assess and determine the criminal liability of autistic defendants due to a reliance on approaches largely based on neurotypical views and rationales. The use of such approaches tends to lead to outcomes whereby autistic defendants risk being judged according to neurotypical cognitive standards or be forced to rely on the partly stigmatising insanity defence.

Drawing from the author’s ongoing PhD research, this paper builds on previous literature holding these approaches as problematic as they fail to account for autistic traits and thought processes when assessing criminal liability. The main aim of this paper is to preliminarily set the stage for an alternative lens for determining the criminal liability of autistic defendants based on principles emanating from the so-called ‘neurodiversity paradigm’. This proposed new perspective will be informed by three factors: (i) the history of autism and the philosophy of neurodiversity; (ii) the impact and influence of the neurodiversity paradigm across various disciplines; and (iii) a critical discussion of ongoing trends in approaches towards determining the liability of autistic defendants taken by criminal courts thus far.

The paper concludes by arguing that approaching the issue via a new neurodiversity-based lens provides several benefits, including: (i) a departure from the exclusion of autistic defendants from a fully fair adjudication within the criminal legal system; and (ii) the capturing of the ongoing emergence of a paradigm shift that has proliferated in other disciplines in order to inform and refine the law on the status of autistic defendants.