Asperger's Disorder, Criminal Responsibility and Criminal Culpability

Abstract

It was nice in the police cell. It was almost a perfect cube, 2 metres long by 2 metres wide by 2 metres high… . [The policeman asked], “Are you telling the truth?” I said, “I always tell the truth.” And he said, “Right. I am going to give you a caution.” I asked, “Is that going to be on a piece of paper like a certificate I can keep?” He replied, “No, a caution means that we are going to keep a record of what you did, that you hit a policeman but that it was an accident and that you didn't mean to hurt the policeman.” I said, “But it wasn't an accident.” M Haddon, The Curious Incident of the Dog in the Night-Time (David Fickling Books, London 2004) Asperger's syndrome was only formally accepted into the ICD and DSM classifications of psychiatric disorders in the 1990s. It has been written about extensively in the scholarly literature for two decades, but diagnostic tools are continuing to evolve, as well as understanding of its genetic component and its brain development features. In the criminal law context it poses difficult issues at trial and at sentencing. Contextualising Asperger's disorder within current knowledge about autism spectrum disorders, this article identifies relevant court decisions internationally, and particularly scrutinises selected decisions in the United Kingdom (Sultan v The Queen [2008] EWCA Crim 6), Victoria, Australia (Parish v DPP [2007] VSC 494), and Nova Scotia, Canada (R v Kagan (2007) 261 NSR (2d) 285; (2008) 261 NSR (2d) 168). It argues that Asperger's disorder needs to be distinguished by the courts from other disorders, such as personality disorders and intellectual disability, and should be recognised as having the potential to affect in important, albeit subtle, ways defendants' thinking and understanding, as well as their emotional responses to situations that are to them traumatic. This makes Asperger's disorder relevant to a number of threshold issues in relation to criminal responsibility as well as to criminal culpability.