By: Walewska M. Watkins*
Disabled individuals2—especially those who are intellectually and developmentally disabled— are more likely to become involved in the criminal justice system as survivors or offenders than those who are not disabled.3 They are exploited and injured by strangers and caregivers who take advantage of their physical, intellectual, developmental, or communication limitations.4 Too often, they are re-victimized by our collective failure to sufficiently empower them in rejecting abusive criminal behavior and obtaining legal protections.5
Whether intentionally or negligently, we have failed to create administrative and judicial systems willing to believe and sufficiently accommodate them.6 We have yet to eliminate personal and systemic biases that conceive of the harms inflicted upon them as inevitable, necessary, or benign or simply as civil or administrative infringements that do not require prosecution.
Disabled individuals also disproportionately bear certain burdens of inequality, including unemployment, poverty, homelessness, and violence that can drive them—as they drive others— to engage in criminal conduct. Some—especially those with intellectual and developmental disabilities—are manipulated into criminal behavior by their social isolation or misinterpretation of the nature of illicit activities.7 Regardless of their status as accusers or accused, disabled individuals are entitled as a matter of law to fully access and participate in our judicial systems.
As attorneys, we are charged with the aspirational goals of our Rules of Professional Conduct to consider the existing deficiencies in the administration of the justice and to improve our laws and the quality of services we render to the public.8 As officers of the court, we should aspire to eliminate existing and emerging physical and communication barriers that prevent disabled individuals from participating in investigative and adjudicative processes free of condescension and pernicious discrimination. We should also seek to create and enforce remedies that fairly redress the harms disabled individuals experience and address the harms they may perpetrate.
What is Autism?
An Autism Spectrum diagnosis generally identifies individuals with sensory processing, executive functioning, communication, or social interaction approaches that depart from the stereotyped expectations we deem the norm. Depending upon their profile or situational needs, those who have received the benefit of an Autism Spectrum diagnosis (i.e., Autistic individuals) may be entitled to the protections afforded under federal and state disability rights statutes.
Some Autistics may, for instance, process language (including its intonations, interruptions, and accompanying gestures) or other sensory stimuli (e.g., a banging gavel or a crowd suddenly standing up) differently from that preferred by a government agent or institution (e.g., more slowly, more intensely, more fearfully, etc.) Others may communicate through alternative means or assistive technology (e.g., American Sign Language, speech generating devices, picture boards, or electronic communication boards) or may have developed an individualized approach to vocabulary, grammar construction, volume, cadence, facial expressions, or mannerisms. Yet others may require emotional or social supports either sporadically or consistently.
According to the National Institute of Mental Health, about 1.9% of the general population has been diagnosed as Autistic by either a medical or educational expert.9 It is likely, however, that this number underestimates Autism’s prevalence since women and racial and ethnic minorities are more likely to go undiagnosed.10
The Centers for Disease Control and Prevention estimate that close to 24% of adult Virginians are disabled.11 Though historical changes in diagnostic criteria and previous systemic failures in data collection make it difficult to establish the size of Virginia’s Autistic cohort, estimates show that about 10% of Virginian children who receive supportive education services is Autistic.12 This suggests that Autistics represent a similar proportion of the population here as they do nationwide.
Is Autism a Disability That Our Courts Must Accommodate? (Yes. It is.)
The Americans with Disabilities Act (ADA) along with its regulations and the Virginians with Disabilities Act (VDA) define “disability” in terms of a substantial limitation of one or more major life activities, including neurological functions such as perceiving, concentrating, analyzing, and communicating.13 While each Act has its own nuance, they both seek to ensure that disabled individuals are guaranteed equal opportunities and full participation in social and civic life.14
Title II of the ADA, for example, requires public entities—such as our Commonwealth courts and Commonwealth Attorneys— to take appropriate steps to ensure the protection of the statutory and constitutional rights of “qualified individual[s] with a disability.”15 These steps (sometimes referred to as “reasonable accommodations”) may include providing access to technological aides, certain professional services, and the assistance of others to facilitate the disabled individual’s communication and participation in government services, programs, or activities.16 The VDA similarly prohibits excluding “person[s] with disability” from participating in or benefiting from programs or activities undertaken by the state, on behalf of the state, or otherwise receiving state financial assistance on the basis of their disability.17
Whether they do so consistently or only under the stress of participating in judicial processes, Autistic individuals can find these processes inaccessible and thus evidence a substantial limitation to a major life activity. Their unconventional needs or behaviors may, moreover, prevent narrowly focused prosecutors, legal representatives, jurors, or judicial officers from fairly evaluating Autistics’ competence, memory, motivations, and trustworthiness and from honoring their rights to due process of the law and other constitutional guarantees. Autistic individuals would therefore qualify as “person[s] with disability” and be accordingly entitled to receive reasonable accommodations throughout their participation in the judicial process and related proceedings.
How Can Our Court Systems Reasonably Accommodate Autistic Individuals?
While disabled individuals may be capable of filing a request for a reasonable accommodation (i.e., a modification or adjustment to processes) in advance of a particular interaction,18 they may not know in advance that they will need one. The absence of such requests does not relieve an entity of its obligation to take “appropriate steps”19 to prevent disability-based discrimination.
A logical first appropriate step in providing yet unrequested reasonable accommodations is to recognize that an individual may be unable to perform a specific task in the standardized manner. An attorney, judicial officer, or support staff may, for example, perceive that a person is struggling to complete intake paperwork.20 Without demanding information about the source or nature of the person’s disability, they may volunteer to read the text aloud or paraphrase for simplicity. This may quickly address the challenges faced by dyslexic individuals, by those unfamiliar with technical language, or by Autistic individuals who struggle with open ended questions.
Depending upon the type of form in question, attorneys may alternatively offer to complete the form for the individual—which would discretely address language production, educational, or motor coordination disadvantages experienced by the disabled individual. The reasonable accommodation that would best fit a situation and an individual, however, will depend upon the situation, the substance of the form, the individual, and the disability.
Recognizing and honoring a disability is more complicated and must go farther than preparing initial paperwork to access justice. It is the courts’ duty to ensure that Autistic or otherwise disabled victims, witnesses, and even accused are afforded means and strategies for communication that can effectively help them establish their positions and communicate their experiences of trauma.21
Non-Autistic participants in judicial process should, for example, refrain from relying on the ambiguity of body language and demeanor since Autistics may either produce or perceive those differently. Autistics’ demeanor may, for example, be significantly influenced by trauma and by their unconscious development of “a psychological safety mechanism made up of complex layers of physical, emotional and social actions…”22
Autistics may also easily misunderstand open ended questions and become unduly anxious due to their limited ability to capture context clues and intended meanings.23 Indeed, following some of our sister states’ precedent, judicial officers should consider exercising their discretion—as contemplated by Va. S.Ct. Rule 2:611— to allow leading questions during a direct examination as a reasonable accommodation to develop testimony at trial.24
The rules on relevance may have to yield to accommodate an Autistic witness and allow the presentation of contextual information about Autism and how the person’s Autistic profile or learned coping strategies may express itself in the individual’s tone, posture, expressions, behavior, or choices. Such modification to our traditional notions of relevance can similarly provide context to behavior presented as evidence of Autistic defendants’ motive, intent, fault, guilt, demeanor, and remorse to ensure that harms are repaired without imposing disproportional accountability.25
Individualization of accommodations is fundamental as Autistic individuals are not monolithic. For some, these or similar accommodations may represent the best means to “facilitate the ascertainment of truth,” “avoid needless consumption of time,” and protect an Autistic or otherwise disabled witness from “harassment or undue embarrassment.”26 For us, they may represent our best acknowledgement of the special vulnerabilities of Autistic victims that make them easy targets for physical abuse and psychological and intellectual manipulation.
*About the author
Walewska M. Watkins is a legal services attorney, living and working in Northern Virginia. She received her Juris Doctor from Georgetown University Law Center and her LLM in Environmental Law from Tulane University Law School. She is licensed to practice law in New York, California, Puerto Rico, the District of Columbia, and our Commonwealth of Virginia. Her practice has included civil rights, environmental regulation, gender discrimination, and First Amendment rights as well as copyrights and commercial litigation. Ms. Watkins is a member of the Governor’s Virginia Latino Advisory Board and the Fairfax County’s Community Action Advisory Board, a Virginia Board for People with Disabilities’ TAA, and a member of the Little Lobbyists, a not-for-profit organization that advocates for the rights of children with complex medical needs and disabilities.
- There is a growing body of activism and scholarship focused on law enforcement interactions with Autistic individuals and on how training and experience working and socializing with Autistics can improve law enforcement outcomes. Little work has been done, however, to enrich prosecutorial decisions on Autism and on how Autistics may experience crime and criminal prosecutions differently from non-Autistics. During its 2021 Spring Training Institute last April, the Commonwealth’s Attorneys’ Services Council assumed a leading role introducing our state attorneys to an overview of Autism, how aspects of prosecutorial and judicial processes can affect Autistics’ access to justice, and how some reasonable accommodations can mitigate certain challenges. The expert training panel—“Autism and Criminal Justice”— included attorney Ariel Simms from The Arc of the US’ National Center on Criminal Justice & Disability, attorney Kelly Israel from the Autistic Self Advocacy Network, the Honorable Judge Susan J. Stoney from the Fairfax County General District Court, and the author. This article reflects some of its lessons.
- This National Center on Disability and Journalism’s Disability Language Style Guide recognize that some disability activists prefer the use of person first language—i.e., “person with a disability”—, while others prefer identity first language—i.e., “disabled person.” Nat’l Ctr on Disability and Journalism’s Disability Language Style Guide, https://ncdj.org/style-guide/#disabledpeople (last accessed April 30, 2021). The Autistic community currently prefers identity first language and thus this writing will follow their lead.
- Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects, p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021). See also Jeffrey A. Cohen, Thomas A. Dickerson, and Joanne Matthews Forbes, A Legal Review of Autism, A Syndrome Rapidly Gaining Wide Attention Within Our Society, 77 Albany Law Review 389, 417 (2014)(citing Karen Hughes et al., Prevalence and Risk of Violence Against Adults with Disabilities: A Systematic Review and Meta-Analysis of Observational Studies, 379 Lancet 1621, 1626, 1627 (2012))(Autistic individuals are more likely to be victims than perpetrators of crime.) (Content Warning: This article includes ableist language and perspectives.)
- See, e.g., Christina Rainville (Jan. 09, 2018), Prosecuting Cases for Children on the Autism Spectrum [American Bar Association’s Center on Children and the Law Blog Post], available at https://www.americanbar.org/groups/child_law/resources/child_law_practiceonline/child_law_practice/vol_32/april-2013/prosecuting-cases-for-children-on-the-autism-spectrum/ (last accessed April 30, 2021); Karen Hughes et al., Prevalence and risk of violence against adults with disabilities: a systematic review and meta-analysis of observational studies, p. 8 (2012), available at https://www.who.int/disabilities/publications/violence_children_lancet.pdf (last accessed April 30, 2021); Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects (August 2009), p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021).
- Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects (August 2009), p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021).
- Va. State Bar: Professional Guidelines, Preamble: A Lawyer’s Responsibilities, available at http://www.vsb.org/pro-guidelines/index.php/rules/preamble/ (last accessed April 30, 2021). See also Supreme Court of Virginia, Virginia’s Courts in the 21st Century: To Benefit All, To Exclude None, available at http://www.courts.state.va.us/courtadmin/aoc/judpln/reports/2009_strat_plan.pdf (last accessed May 31, 2021)((Vision 2.5 reads: “Eliminate from the operation of the Judicial System harmful biases such as those based on race, gender, age, disability or socioeconomic status”; Vision 5.9 reads: “Ensure that participants in the judicial process are not discriminated against because of race, language, gender, age, disability, or socioeconomic status.”)
- Nat’l Inst. of Mental Health, Prevalence of ASD, available at https://www.nimh.nih.gov/health/statistics/autism-spectrum-disorder-asd (last accessed on May 11, 2021).
- See, e.g., Jen Malia, “My Daughter and I Were Diagnosed with Autism on the Same Day,” The New York Times, (October 15, 2019), available at https://www.nytimes.com/2020/04/15/parenting/autism-mom.html (last accessed May 11, 2021); Allison B. Ratto et al., What About the Girls? Sex-Based Differences in Autistic Traits and Adaptive Skills, 48 Journal of Autism Dev. Dis. 1698–1711 (2018); David S. Madell et al., Racial/Ethnic Disparities in the Identification of Children With Autism Spectrum Disorders, 99 Ame. Journal Public Health 493 (2009), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2661453/ (last accessed June 14, 2021).
- U.S. Centers for Disease Control and Prevention, Disability & Health U.S. State Profile Data for Virginia (Adults 18+ years of age), available at https://www.cdc.gov/ncbddd/disabilityandhealth/impacts/virginia.html (last accessed on May 12, 2021).
- Easter Seals, 2016 State Autism Profiles VIRGINIA, https://www.easterseals.com/explore-resources/living-with-autism/2016-autism-virginia.pdf (Content Warning: This document includes ableist language and perspectives.)
- As defined by the Americans with Disabilities Act (ADA), the term “disability” means an actual or perceived “physical or mental impairment that substantially limits one or more major life activities” or a record of such an impairment. 42 U.S.C. § 12102(1); 42 U.S.C. § 12102(2)(C). The ADA protects individuals who are perceived as disabled, but who are not actually so, only if their perceived impairment is not one that would be regarded as transitory, defined as lasting six months or less. 42 U.S.C. § 12102(3)(B). See 42 U.S.C. § 12102(4)(including rules of broad construction and interpretation). See also 28 C.F.R. § 35.108. For purpose of the ADA, “major life activities” include, but are not limited to, “but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). They also include immune, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 42 U.S.C. § 12102(2)(B). See also Virginians with Disabilities Act, Va. Code § 51.5-40.1.
- See 42 U.S.C. § 12101(b); Va. Code § 51.5-1.
- 42 U.S.C. § 12132. See also 42 U.S.C. § 12131(1)(defining the public entities subject to ADA’s Title II); 42 U.S.C. § 12131(2)(defining “qualified individual with a disability” as a disabled individual who, with or without reasonable accommodations, “meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”)
- 28 C.F.R. §35.160.
- Va. Code § 51.5-40.
- The Supreme Court of Virginia highly recommends the use of the following form to make a reasonable accommodation request: http://www.courts.state.va.us/courts/ada/accommodation_request_form.pdf (last accessed May 31, 2021). No government entity may, however, predicate the processing or grant of a reasonable accommodation upon the filing of a paper application or preferred form.
- 28 C.F.R. §35.160(a)(1) (“A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.”)
- The basis for this exemplary scenario must be credited to attorney Ariel Simms from The Arc of US.
- 28 C.F.R. § 35.160(b)(1) (“A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.”)
- Kieran Rose, Autistic Masking and Autistic Burnout: What is Masking?, available at https://theautisticadvocate.com/autistic-masking/ (last accessed on May 12, 2021).
- Similarly, slang, popular expressions, and overly symbolic language can also confuse or easily frustrate certain Autistic and otherwise disabled individuals.
- See, e.g., State v. Rivera, 987 A.2d 887, (R.I. 2010) (affirming decision to permit adult with developmental disabilities to be questioned by leading questions in a sexual assault case); People v. Augustin, 112 Cal. App. 4th 445, 449, 5 Cal. Rptr. 3d 171, 175 (2003)(affirming trial court’s decision to accommodate assault victim with cerebral palsy and speech disabilities by permitting leading questions on direct examination); State v. Stewart, 2003 WL 21251642, *11 (Tenn. Crim. App.)(affirming decision to permit direct examination of adult victim through leading questions, noting victim’s “mental condition” and “severe speech impediment” such that she “could not express herself as other witnesses can”); Trammell v. State, 298 So. 2d 66 (1974) (affirming decision to allow witness who had suffered a stroke to be questioned by leading questions and to answer non-verbally).
- Jeffrey A. Cohen, Thomas A. Dickerson, and Joanne Matthews Forbes, A Legal Review of Autism, A Syndrome Rapidly Gaining Wide Attention Within Our Society, 77 Albany Law Review 389, 413 (2014). (Content Warning: This article includes ableist language and perspectives.) The Hon. Jeffrey A. Cohen and the Hon. Thomas A. Dickerson are Associate Justices of the Appellate Division of the New York State Supreme Court, Second Judicial Department.
- See Va. S.Ct. Rule 2:611. See also Connecticut Code of Evidence § 6-8(b)(3), Comment (“Under exception (3), the court may allow the calling party to put leading questions to… a witness who has trouble communicating.”); California Rule of Evidence 767, Comment (“The exception stated at the beginning of the section continues the present law that permits leading questions on direct examination where …such questions are necessary to obtain relevant evidence. This would permit leading questions on direct examination for …examining handicapped (sic) witnesses[.]”)(internal citations omitted).