Neurodiversity and the Legal System’s Response to Domestic Violence

By Kristine Lizdas, Esq.

“Neurodiversity” and “neurodivergent” as terms or concepts emerged several decades ago to express variations in human experiences and as a rejection of otherwise deficit-based language. Individuals with a wide variety of developmental and psychological diagnoses embrace the term as an affirmation, as well as a framework to promote inclusivity, accommodations and support to ensure that neurodivergent people can thrive in their lives and communities. Listed among the many “hidden” disabilities, the terms raise awareness that many among us experience the world drastically differently even if they successfully mask this struggle from those around them.

As a result of this reclamation of difference within the disability rights field, many institutions have developed practices and opportunities that support the full participation of neurodivergent people in spaces that were formerly inaccessible if not hostile. For example, to better accommodate individuals on the autism spectrum, museums and concert halls reserve schedule time for individuals who struggle in overcrowded and over-stimulating spaces. Some medical and educational institutions offer sensory-friendly lighting, deliberate visual communication cues and training for staff to better recognize self-soothing behaviors as well as the discordance neurodivergent people generally experience in systems created for neurotypical people.

One institution that has been slow to accommodate the neurodivergent community are courts, and the legal system more broadly. For myriad reasons, neurodivergent people are significantly disadvantaged in the legal system – both as parties in civil litigation as well as criminal defendants and victims. This is nothing short of heartbreaking, especially in the criminal context, given that many neurodivergent people, including those on the autism spectrum, are disproportionately impacted by all forms of violence, including intimate partner violence.1

In the case of autism specifically, abusive partners take advantage of autistic traits to control and hurt their partners. For example, some autistic people are socially isolated by their own neurodivergence for many reasons, and abusive partners can easily isolate them further from social supports and protective friends. Some autistic individuals are uniquely susceptible to the phenomenon of “gaslighting” as they live in a society for which they are not wired and rely on others’ translations regularly. Similarly, an autistic person might have difficulty perceiving the true motivation of their abusive partner and not be able to discern manipulation or bad intentions as easily as neurotypical victims. Notably, many autistic people “shut down” when overwhelmed, which creates an additional barrier to help-seeking when experiencing violence.

Another common trait among neurodivergent people, including people on the autism spectrum, is difficulty regulating emotions and experiencing “meltdowns.” For autistic victims of ongoing domestic violence, these meltdowns are blamed for the abusive partner’s use of violence against them. The abusive partner might say that they instigated the fight or that the abusive partner felt threatened. If the abusive partner calls 911 during an autistic meltdown, law enforcement are very likely to perceive the emotionally dysregulated autistic victim as the abusive party and arrest the autistic victim. Once in the criminal legal system as a defendant, a victim might not successfully communicate their neurodivergence to law enforcement, prosecution or the court; and even if they were to do this, the legal system has very few tools for quickly off-ramping the autistic victim. To add salt to the wound, the sensory experiences of arrest, booking, jail and courts, as well as the distortion of “fairness” and “justice” of the process, likely prolong the autistic victim’s state of overstimulation and dysregulation, limiting their ability to make good decisions and self-advocate.

Relatedly, the criminal legal system – as well as the adjacent domestic violence services and perpetrator programs2 – do not have the skills and tools to differentiate people whose use of violence against an intimate partner is rooted in their neurodivergence and those whose use of violence is rooted in a sense of entitlement and an intention to coercively control their partners. For this reason, many neurodivergent people get enmeshed in a system that is unable to either deter or assist them, but in fact, exacerbates their existing vulnerabilities. Neurodivergent defendants, including autistic defendants, are hugely misunderstood by legal systems.3 The traits of autism disadvantage defendants as they are less likely to understand the context of the situation, possess a rigid sense of fairness that might be in conflict with the law, are too quick to volunteer information, will be rendered more vulnerable by the overwhelming sensory experience of courts, and on and on.4 For those autistic individuals who have committed an act of violence against their intimate partner, our legal systems are not structured to provide helpful interventions to either the perpetrator or victim.

Given the prevalence of neurodivergent people interacting with legal systems, and their disproportionate exposure to violence, it is past due for the legal system to implement those changes that promote the safety and well-being of all the neurodivergent people walking through the courthouse doors.

TAGS: #BWJP Announcements #Gender Based Violence #News

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