Abstract
One way to determine whether a mental condition should be considered a disorder is to first give necessary and sufficient conditions for something to be a disorder and then see if it meets these conditions. But this approach has been criticized for begging normative questions. Concerning autism (and other conditions), a neurodiversity movement has arisen with essentially two aims: (1) advocate for the rights and interests of individuals with autism, and (2) de-pathologize autism. We argue that denying autism’s disorder status could undermine autism’s exculpatory role in cases where individuals with autism are charged with a crime. Our argument raises a dilemma for the neurodiversity movement: advocating for the rights and interests of individuals with autism may require viewing autism as a condition that can be inherently disabling (at least for some individuals). If this is right, autism’s disorder status might be maintained (again, at least for some individuals) without deriving this result from any general account of disorder.
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Notes
Some have also questioned whether any top-down approach can be normative-neutral, as opposed to just the relatively weaker concern that some or many of these accounts are value-laden; See [2] for this more general concern. For general discussion over how best to conceive of health, disorder and disease, see [2, 12, 16, 30, 44]. Thanks to Jake Wright for suggesting these additional sources on this issue. For the sake of this paper, we don’t intend to take a stand on either of these critiques—we hope to show that our argument could succeed whether or not any of these criticisms are warranted. We would like to thank a blind reviewer of a previous draft of this paper for their request that we clarify our position here.
While the movement initially began out of the autism rights movement, the neurodiversity movement is meant to concern other conditions besides autism as well (e.g., dyslexia).
The term was then popularized that same year in an article in The Atlantic [11]. And while the self-advocate Nick Walker claims that the political aspects should be kept distinct from the notion of neurodiversity itself (Walker, ‘Neurodiversity’), most scholars use ‘neurodiversity’ in this more normatively-loaded sense. For instance, Baker construes ‘neurodiversity’ as an “inherently public” concept, drawing on the political connotation of ‘diversity’ [5].
As Singer writes, ‘I was dreaming of a grand new social movement for neurological marginalized groups along the lines of the feminist, gay liberation or disability movements.’
In the case of autism, proponents have criticized the myopic focus on finding treatments or genetic markers for autism, instead arguing that more research and funding should go to helping address the daily and life-long challenges faced by individuals with autism. Proponents also argue that more should be done to address the needs of adults with autism, like helping them find and sustain meaningful employment.
We endorse this political aim of the neurodiversity movement wholeheartedly. In particular, we think much more should be done to address the barriers individuals with autism face to finding meaningful work. For instance, Romoser explains that one of the biggest barriers is the traditional interview process, given its primary focus on the kinds of social skills that many individuals with autism lack [32].
See also the Autism Self-Advocacy Network (ASAN) position statement.
Here is an excerpt from a position statement from the leading autism self-advocacy organization, the Autism Self-Advocacy Network (ASAN):
In accordance with the social model of disability, we recognize that disability need not be a tragedy or a misfortune and that barriers to full participation in society often arise not from physical or mental differences, but from cultural attitudes that stigmatize certain types of people as less worthy of inclusion than others. Thus, a person becomes disabled not as an inevitable result of his or her condition, but rather because society has not accommodated his or her needs sufficiently to enable equal participation in the community.
http://autisticadvocacy.org/about-asan/position-statements/Accessed 19 July 2017.
Donvan and Zucker briefly discuss the use of this analogy to sexuality and other diversity-markers [14]. Aside from prominent neurodiversity advocates like Ari Ne’eman and Nick Walker, a similar line of reasoning seems to be pressed by J. L. Anderson, though more in terms of viewing autism as an essential property of an autistic individual [3]. We do not address this notion in this paper.
It is worth pointing out that we do not think the neurodiversity movement is committed to allowing individuals with autism to “get away with murder.” But even in such cases, an autism diagnosis has sometimes played a mitigating role in sentencing (e.g. a life sentence as opposed to the death penalty) [34].
Other frameworks besides ToM have been offered to explain the deficits unique to autism, like Weak Executive Function and Weak Central Coherence. Barnbaum gives a review of each of these frameworks [7].
For example, there’s an incident discussed in the literature where a 27-year-old “high-functioning” autistic male was persuaded to have sex with a doll in front of others because he thought it would arouse the women watching and thus make it more likely that they would have sex with him [29]
While there are some more details provided concerning these individuals, the details concerning the offending behavior appears to be limited.
The present classification system divides individuals across the spectrum into three different levels, with level 1 indicating the least severe form of ASD.
The psychiatrists involved in TN’s case believed that he was likely competent to stand trial and follow the proceedings, even though the case was ultimately dropped [24]. Concerning KD and KA, there was some concern that their fitness to stand trial could have been tied to both the lack of complexity and the minor severity of their cases [6].
For instance, a relatively recent case in Florida involving a man with autism and charges of internet child pornography was dropped after the judge deemed the 25-year-old man not competent to stand trial [48].
A reviewer of a previous draft has suggested that this feature of TN’s case seems more likely due to some form of delusion than TN’s deficits in social reasoning. Information available from documentation of this case does not make clear how explicit the communication was made regarding the rejection, or whether the woman was trying to be polite about it in a manner he did not understand.
Thanks to Kevin Timpe for raising this point, particularly as it concerns Harassment.
Michael Smith argues that ascribing (moral) responsibility for bad behavior requires that we have evidence that the agent had the capacity to behave correctly but ‘failed to exercise’ that capacity [40]. Presumably the psychiatrists involved in these cases would argue that their condition gives us strong enough reason to doubt that they had the requisite capacity, at least in those situations at that time. This is not to say that these individuals couldn't learn, in retrospect, that their behavior was inappropriate.
Heather Strickland argues that some individuals with autism may benefit from an “autism defense”, which she says could look something like the following:
“Autism defense” – A person shall not be responsible for their criminal conduct where such person suffers from a neurological disorder which is so disabling that the person does not intend, nor comprehends, the results of their actions, and has no control over his or her actions, which are simply a manifestation of the characteristics of the disorder [42].
Strickland suspects that individuals with AS “might not be appropriate candidates for an autism defense” because they are “likely to have a better developed sense of the consequences of their actions” [42]. But the three cases described above seem to embody many of the features cited in Strickland’s autism defense proposal (notwithstanding the “control over his or her actions” condition, of course).
The objections we consider here have been drawn from discussions with many people, specifically Jami Anderson, Neil Levy, Deborah Barnbaum, Kevin Timpe, Elizabeth Barnes, and the attendees at the presentation of this paper at the Society for Philosophy and Psychology 2017 conference meeting in Baltimore, Maryland.
In his The New York Times Op-ed, Steve Silberman makes the case that law enforcement officials need to become more aware of exactly these kinds of features of autism in order to avoid misinterpreting the behavior of individuals with autism [35].
Elizabeth Barnes suggests that ableist conceptions may have so permeated our understanding of disability that even our intuitions about such matters are bound to have been shaped by such prejudice [8]. As a result (Barnes argues) philosophical reflection in this domain risks being question-begging from the outset [8]. For a criticism of Barnes’ argument, see [23].
One might be tempted to say that TN did not actually harass the woman because he did not have harassing intentions. But the standard approach to harassment is that the intent to harass is not necessary for behavior to count as harassment, nor is the lack of intent sufficient to excuse such harassment. Thanks to Kevin Timpe for raising this issue.
Thanks to Deborah Barnbaum for pressing us to clarify this point.
Thanks to an anonymous reviewer for pressing us on whether it’s necessary that autism be considered a disorder in order for autistic impairments to play a role in assigning legal accountability. We don’t think that this is strictly necessary, but we also don’t think that this removes the dilemma for neurodiversity.
Thanks to an anonymous reviewer for pressing this point.
We’ve used this caveat throughout the paper; it’s important to note that we are not denying the possibility that autism can be a mere-difference for some individuals. ASD is a very broad spectrum, perhaps unique in its breadth when compared to other neurological conditions. But it’s also perhaps this feature of autism that makes space for the dilemma we are defending here.
Thanks to an anonymous reviewer of a previous draft for suggesting this example and pressing this defense of the mere-difference view. The reviewer’s original worry was that the medical/social dichotomy is a false one since there’s unlikely to be any condition that is disabling across all counterfactual contexts. It’s worth emphasizing that the mere-difference view doesn’t require that the disabling features of a condition be entirely due to social factors—Barnes admits that some conditions may well be inherently disabling in some contexts, no matter how condition-friendly the society may be. The mere-difference claim is simply that the overall impact of a condition’s disabling features on life’s value washes out once society is sufficiently condition-friendly and the benefits/burdens of the condition are weighed together.
Thanks to Jake Wright for suggesting this response.
This is an objection to hedonistic views of value generally; see [38].
Sousa, R. (pre-publication draft). ‘Is Contempt Redeemable?’, http://homes.chass.utoronto.ca/. Accessed 1 September 2017. Thanks to Neil Levy for pointing us to this expression.
Richman and Bidshahri argue that some individuals with autism likely are missing some of the capacities necessary for full moral responsibility on the Strawsonian reactive attitudes account; see [31], specifically p.48–9.
Using the upper-case ‘D’ in ‘Deaf’ denotes that the individual identifies with being Deaf in a shared identity with a larger community of other Deaf individuals; the lower-case ‘d’ is used to simply denote an individual who happens to be deaf. See [27].
Thanks to an anonymous reviewer of a previous draft for both suggesting this fictional scenario and for pressing us on this point.
These are essentially empirical questions, after all.
For issues related to mindblindness, see [9].
It’s possible that this impairment is simply due to the interplay of social reasoning deficits and obsessive, narrowly-focused interests. Even so, it would still count as its own impairment, possibly interfering with legal responsibility in ways that are incompatible with the mere-difference account.
For general issues with mental flexibility, see [20].
While other sources use initials or pseudonyms for the identity of the individual, this source appears to use the individual’s actual last name. We’ve chosen to simply create a pseudonym—“Smith”—to use instead.
This is admittedly a strange case given that the offending behavior concerns this individual’s treatment of his spouse, and there doesn’t appear to be much detail concerning the offending behavior itself. Nevertheless, we think the observation provided by this clinician helps capture some ways rigidity in thought raises possibly unique challenges for protecting these individual’s rights within a criminal justice context.
This also has implications for whether it’s possible to tie any legal exceptions to the impairments themselves instead of to the condition as a whole. If the paternalism in this case makes sense only because of the court’s sensitivity to the combinatorial effect of these impairments, such that it’s not any single impairment that justifies the excuse or mitigation, then citing the impairments instead of the condition looks like a distinction without a difference. But whether this is so admittedly turns on whether these impairments do in fact define autism proper. And again, while we think our argument suggests some reason to retain autism’s disorder status, it doesn’t necessarily entail this conclusion. Thanks again to an anonymous reviewer of a previous draft of this paper for pressing us to clarify this point.
Anderson argues that certain kinds of treatments or “cures” are either conceptually impossible or deeply unethical [3].
Jaarsma and Welin argue that the scope of neurodiversity should not be expanded to the “low-functioning” part of the spectrum [22].
Ari Ne’eman claims that the high/low functioning distinction merely reflects neurotypical biases and ableist prejudice [14]. Presumably Ne-eman’s concerns would carry over to the new, three-tier classification system of 1–3 levels.
For a good overview of this debate, see [7].
In personal communication, Barnes herself is hesitant to apply her “mere-difference principle” to autism. She thinks first-person testimony provides the most powerful reason to adopt the “mere-difference” principle to disabilities, and she worries about the difficulties inherent in obtaining such testimony from non-verbal/non-communicative individuals with autism. Still, she grants that the view could hold for individuals with autism.
For a more general defense of the intrinsic worth of people with cognitive disabilities, see [26].
As Armstrong writes, ‘How absurd it would be to label a calla lily as having “petal deficit disorder” or to diagnose a person from Holland as suffering from “altitude deprivation syndrome.” There is no normal flower or culture. Similarly, we ought to accept the fact that there is no normal brain or mind’ [4].
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Acknowledgments
Special thanks goes to the following individuals, many of whom read earlier drafts of this paper and provided us with invaluable feedback: Jami Anderson, Deborah Barnbaum, Neil Levy, Kevin Timpe, Elizabeth Barnes, Philip Robbins, Peter Vallentyne, Jake Wright, Nick Walker, Ryan Dickson, Nicole Shields. Special thanks also goes to the audiences at presentations of earlier drafts of this paper at the Society for Philosophy and Psychology and the Missouri Philosophy Forum.
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Kenneth Shields was lead author, writer and researcher. David Beversdorf inspired the legal focus of the paper and verified empirical claims concerning autism. Beversdorf also offered comments, possible replies to objections, and general assistance on numerous drafts of the paper.
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Shields, K., Beversdorf, D. A Dilemma For Neurodiversity. Neuroethics 14, 125–141 (2021). https://doi.org/10.1007/s12152-020-09431-x
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DOI: https://doi.org/10.1007/s12152-020-09431-x