The Law of Excuses

I’ve been thinking a lot recently about a particular legal double-bind faced by people with disabilities that affect behavior and, to a certain extent, people in commonly misunderstood situations that affect people’s emotional state (e.g., poverty, abuse, and certain crises of identity). When members of these groups find themselves facing criminal, financial, or disciplinary sanctions for behavior that they feel was related to their disability or situation-induced emotional state, it may be in their interest to seek leniency in light of their disability or situation. On the other hand, because such arguments for leniency are often interpreted by the broader society as confirming stereotypes that members of these groups are unpredictable, incapable of making sound decisions, and even dangerous. These stereotypes, in turn, can perpetuate the group’s exclusion from employment, segregation from the community, and even deprivation of access to their own children.

I actually started thinking about this in the context of the trial of Pfc. Manning, who leaked classified State Department memos to Wikileaks. Defense attorneys cited Manning’s growing discomfort with being perceived as male – discomfort that had been expressed to numerous people, including at least one superior officer – as evidence that Manning was unstable and thus should not have continued to have access to classified materials. (Washington Blade). Understandably, a representative for the National Center for Transgender Equality objected to the suggestion that people in the process of coming out as transgender are inherently unstable and shouldn’t have access to classified materials, arguing that Manning’s gender identity was “totally unrelated” to the leak to Wikileaks.

Here’s another (less recent) example involving autism, since I seem to talk about nothing but autism lately: Reginald Latson, a 17-year-old boy with diagnoses of Asperger’s, ADHD, and Intermittent Explosive Disorder was convicted of assault on a police officer when he fought back (and caused pretty serious injuries) against a police officer who tried to arrest him. His attorneys pled insanity, arguing that the boy’s disabilities, combined with the stress of being forcibly grabbed by the officers (for, as far as I can tell, just being an African-American guy sitting around doing nothing), caused an “irresistible impulse” to fight back (FYI, this kid’s state, Virginia, is one of the few states that allow an insanity plea to be based on the existence of an irresistible impulse. Other states usually require much more severe cognitive impairment such that the defendant doesn’t understand the wrongfulness of their actions).

ThAutcast took issue with both the Washington Post’s reporting on the trial (which implied that violent, explosive behavior was very common among Autistic individuals and which didn’t include an interview with anyone who was actually Autistic), with the suggestion that it was autism that made the defendant attack a police officer, rather than, say, Intermittent Explosive Disorder.

Now, most likely, the reason why they didn’t focus on Intermittent Explosive Disorder either in the defense or in the Washington Post article is because, most likely, you can’t actually base an insanity defense on Intermittent Explosive Disorder. IED, like Oppositional-Defiant Disorder and Antisocial Personality Disorder, is one of those DSM-IV diagnoses that are defined exclusively in terms of the person’s propensity to antisocial behavior (yes, I’m citing Wikipedia, but you can also check the DSM-IV if you have access to it), without any particular regard to the person’s capacity to inhibit it or the underlying root of the behavior (other than that it can’t be due to other disorders like ADHD or Alzheimer’s). To courts, an insanity defense based on IED sounds a lot like saying “I’m not responsible for going off on that cop because I go off on people all the time.”

ADHD and Autism, on the other hand, are particularly fruitful sources of an “irresistible impulse” defense, because both are known to affect individuals’ capacity for emotional regulation in at least some situations, and emotional regulation is (in most people) a key component of self-control. It’s something that I and many disability advocates don’t like to acknowledge because we don’t want to contribute to people’s unreasonable fears, but it’s something that can’t be totally ignored. To do so would be a disservice to people with disabilities who are more likely to come into contact with the criminal justice system – for example, African-American teenaged boys like Latson – and who may not be able to meet the expectations police officers have for how a “non-criminal” would act when confronted by the police (i.e. – verbally and physically compliant even when subjected to rough physical force by the police officer). As ThAutcast has suggested, it’s perfectly plausible that the defendant in this case lashed out, not because his Asperger’s made him particularly aggressive, but because his Asperger’s made him totally panic when he was unexpectedly confronted and pushed around by a police officer.

Going back to Manning, I wonder if anyone would bat an eye if, instead of being transgender, Manning had been in the process of losing a job or becoming estranged from family and had cited these as sources of emotional instability. Both of these are pretty distressing in and of themselves, and, judging from conversations that Manning had with the person who eventually tipped off the police, Manning potentially faced both of these as consequences of coming out as transgender. Some people might say that potential job loss and family issues are not good excuses for Manning’s behavior, but few would fear that such a defense was maligning all people who faced job loss or estrangement from family.

Perhaps such attempts to “normalize” requests for leniency, by phrasing them as similar to more commonly understood phenomena such as feeling threatened or feeling overwhelmed by a difficult life situation, are the best way to reconcile the need for leniency and the need for acceptance.

For example, instead of forcing people with mental disabilities to use the “insanity defense” when they act out of a perceived need for self-defense, we actually gave them access to a modified “self-defense” plea that required only that they sincerely feel that they are in danger, and that this feeling be reasonable for a person with that disability? Similarly, what if, instead of focusing on Manning’s gender identity itself, defense attorneys had focused on the consequences that Manning anticipated as a result of coming out as transgender, many of which would, in and of themselves, cause most people serious distress? Would these arguments still risk encouraging stereotypes that members of these groups are inherently unpredictable or unstable?

These are all just initial thoughts; this issue probably deserves a much longer post. But it’s an interesting question to me and I wanted to bounce it off of people.



Filed under Crime and Punishment, Disabilities, LGBT Issues, Race, The Law as Applied to Weird People & Situations, Uncategorized

11 responses to “The Law of Excuses

  1. setrain

    I almost want to go farther. I tend to think its both the right thing to do and also a good strategic idea to frame as many disability rights issues in terms of the rights of people to be different in general instead of as requests for special treatment. I’ve never liked the “reasonable person” standard in law at all and I think that everybody should get the “modified” self defense plea. A disability would just be evidence that you’re telling the truth about how you felt, but so would family testifying that you get scared easily even without a diagnosis. Tons of innocent nondisabled people get hurt by people assuming that everybody will react exactly the same in extreme circumstances.

    • Twitchy Woman

      This has been done to some extent in some criminal systems through the doctrine of “incomplete” self-defense: a genuine, if unreasonable, perception that one needed to act in self-defense can lead to conviction of a lesser-degree crime (for example, a conviction of manslaughter instead of murder). Part of the problem with allowing a “complete” self-defense justification based an unreasonable belief that one is in danger is that most people’s feelings are actually flexible and respond to social norms of what “counts” as justification. To the extent that the criminal justice system can discourage people from being trigger-happy, it should, and the “complete” self-defense justification should be available only to people who either reacted as they objectively should have reacted, or really couldn’t have been expected to react as they objectively should have reacted.

      The most famous example of this is Bernhard Goetz, who famously shot four teenaged African American men on a New York subway after they surrounded him and demanded five dollars from him. He had been violently mugged before, which was probably why he succeeded on his self-defense claim and was convicted only of illegal possession of a firearm; he didn’t plead insanity due to PTSD, but he did argue that a reasonable person with his experiences would have felt significantly threatened. But without that explanation (and possibly even with that explanation), his belief that he was in sufficient danger to justify the use of deadly force in self-defense would have been so disproportionate to the circumstances that it could only be explained by racism and/or relative disregard for the safety of others. His shooting spree caused pretty serious harm and paralyzed one person, all over five dollars.

  2. Gallian

    Starting in early childhood we have the perception problem of “he gets away with it because he’s autistic” and the extra special “autism is just an excuse of bad behavior.” and post-hoc manifestation determinations as mandated by sped law only hurt that perception.

    As we work toward a universal design for learning, can we work toward a universal design for behavior? Is such a thing possible? What would it look like? What would be the effect on our judicial system of a generation of students who grew up educated under such a system?

    • Twitchy Woman

      I had this issue as a teacher at CTY when I gave informal accommodations to a kid with severe ADHD. The kid kept wandering all over the classroom but was clearly paying attention, so I didn’t stop him, but I still stopped other kids’ behavior that I considered more disruptive or dangerous. I found out later in the session that some kids thought I was being “unfair” and that still other kids were actually really distracted by the wandering but hadn’t said anything because they thought this was obvious. Unfortunately, at that point there was not enough time left in the session to address that perception. I also gave kids a lot of leeway to make origami as a classroom fidget, but they took advantage of this as a way to surreptitiously pass notes. So yeah, universal behavior design is pretty hard: you have to come up with relatively abstract ground rules (e.g., nothing dangerous or unduly disruptive) and then figure out “fair” ways to enforce those ground rules on a case-by-case basis. It’s hard to do this in a way that’s actually perceived by students as consistent and reasonable.

      • gallian

        I think it’s a lot easier in my setting. I have “make it or break it rules” for different privilege levels, but they are defined positively and individually (IOW, each student has their own targets for “respecting personal space” – that might be not touching inappropriate body parts, not staring at people, not getting in people’s face/laughing at them when they’re having a hard time or not rearranging things that don’t belong to you (all real examples) but not respecting personal space will land you on privilege level 2, no matter who you are.) and everyone earns 5 pennies for following their rules every 5 minutes, but everyone’s rules are (slightly) different (which causes me no end of verbal olympics, such that I occasionally give up and say “for following your rules – you know what they are.”) But all of that is much easier to do in a class of 5 than a class of 35. Of course, that’s one of the reasons I can’t fathom teaching in a regular education setting, but there must be a way to extrapolate it. I mean, PBIS has been successfully applied to whole schools, and this is essentially a form of PBIS. Maybe that’s a place to start?

    • Twitchy Woman

      Also, in my experience manifestation determinations are doubly problematic: they give people the impression that children with disabilities “get away with it,” but they also don’t actually prevent many children from being expelled from school even when the behavior really is a manifestation and isn’t sufficiently objectively disruptive to justify expulsion. A lot of the manifestation determinations I’ve seen involve kids who reacted badly to what was clearly a provocation by a teacher (e.g., randomly yelling at a kid in the hallway to tuck in their shirts, then moving in and trying to restrain the kid when they refuse to comply and try to leave the situation). Kids with emotional problems developmental disabilities are far more likely to see that sort of behavior by a teacher as aggression and flip out, but generally the manifestation review team determines that it’s “not a manifestation of disability” because the student is “aware” that they acted in a way that’s against the rules, or because student has an official disability classification (such as specific learning disability) that isn’t typically associated with violent or defiant behavior.

      • gallian

        Oh, there is no question manifest determinations are problematic, and the most recent revision of IDEA only made them worse.

        I have spent a very long time fighting an uphill battle even among other special educators (i.e. people who should know better) about the difference between being aware of their behavior and being able to control it. I have a student currently who is very aware of what he is doing (attention-maintained behavior.) What we are working on is his control over that behavior (he’s extremely impulsive.) We’re seeing an improvement, but trying to help my staff understand that he knows what he’s doing (so please don’t explain it to him — that only gives him attention) but that doesn’t mean he can control it (so when he starts to do it, and stops himself, you should be really proud of him — that’s what we’re working toward!) has been constant battle. I think maybe they’re starting to understand? (a year and a half later….)

        But if professionals in the field don’t understand that, how can we expect the rest of the population to?

        • kisekileia

          That is really, really scary that special ed teachers don’t know that. Believing that awareness = control is a recipe for victim-blaming.

      • Dr. Placebo

        Here’s another thought along the same lines that I’ve had. One question that’s worth asking about the stereotype of people with mental illness as violent or otherwise misbehaving: is a bad reaction really a manifestation of mental illness, or is it a response to some form of mistreatment? Even if a disability isn’t typically associated with violence, someone with that disability may react badly in certain situations, not because of the disability per se, but because of harassment or at least provocation that would not have occurred but for the disability. That extra causal step can easily be ignored when filtered through the lens of sanism, because harassment of a person with mental illness might be dismissed as “ordinary” behavior.

      • kisekileia

        Teacher trying to restrain a kid for not tucking in their shirt?! The teacher should have gone to jail for assault! That behaviour clearly WAS aggression.

  3. B.C.

    It’s worth noting that the distress experienced by trans people isn’t limited to fear of discrimination and condemnation (such as losing one’s job or loved ones). I can’t speak for Manning, but there can be a huge amount of psychological distress from simply feeling that there are few or no social conduits in your existing life through which you can express your gender identity. If you can be yourself in some contexts but not in others, there can be a sense of fragmentation. On a deeper level, there can be significant distress around such issues as authenticity, inadequacy, and incompleteness, even when no discrimination is outwardly experienced, and these feelings can persist well after coming out and transition. There can also be problems with dissociation both before and after transition.

    But as many people have pointed out, the key is that not all trans people experience this distress. It’s not inherent to being trans. Distress in some form or another, manifesting as such diagnosable conditions as depression, anxiety and I’m sure others (that might render one unfit to handle classified documents), is rather a possible effect of being trans, just as it’s a possible effect of many other life conditions and traumas.

    I don’t know how this would apply to the legal arena, but in trying to achieve the balance between leniency and acceptance — wanting to elicit both from others, when the two often seem at cross-purposes — I’ve found empathy to be an essential tool. If a person can reach an understanding of what it feels like to be in your shoes, then it’s easy for them to see how an identity or a condition both has special needs and is thoroughly human, dignified, and lovable. That seems to be what you were getting at when you proposed “normalizing” requests for leniency by changing the language we use to describe special conditions.

    Of course, if gender identity disorder (GID) were not a formal diagnosis in the DSM-IV, we wouldn’t be having this discussion!

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