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.