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February 9, 2021

Is harassment a crime if the harasser has no idea they are harassing?

Guest post by Andrew Duncan

Until 2017 when my 35-year-old autistic son stood trial for harassment, I was complacently innocent of the criminal justice system (CJS) and its workings, especially on people with mental health problems and neuro-diverse conditions like autism. Like too many educated middle class folk I thought the courts and their punishments were others’ concern.

This piece – the first of two – aims to highlight an area of the CJS not only ripe but possibly easier to reform than the rest. Reform that could win public support because people like fair play, and because it would lead to fewer people criminalised, prisons less overpopulated.

What is ASD (autism spectrum disorder)? – Shockingly, with one exception, no one I met in the CJS over three years had a clear understanding. ASD is a neurodevelopmental disorder in which centres of the brain are not connected in the ‘normal’ way. You’re born with it, and it’s lifelong. No two people with autism are the same, but they tend to share certain characteristics. The key psychological feature is no ‘theory of mind’. Autistics can’t tell what you might be thinking. They seem unfeeling (but are not) and they trespass on social boundaries.

Repetitive behaviour and rigid, concrete thinking are also typical. Three emails or three hundred emails on the same subject – it’s all the same to them. They find it hard to follow threads of conversation: talk can sound like noise. They process others’ speech poorly and follow instructions incorrectly. Another major ingredient is anxiety: ASD often goes with crippling levels, leading to meltdowns.. These behaviours can put people with ASD at increased risk of committing some offences, especially when they have mental health problems too.

My son Rob – stable childhood, good behaviour, no previous offences – combined autism with mild ‘mental health problems’, described simply as being disconnected with reality. His is just one case, but there are probably hundreds, even thousands, like his in Britain every year.

In 2016 aged 33 Rob decided that he needed to revive an old friendship. The key motive was making music. Rob had been learning the guitar; the old friend already played. The old friend misunderstood the approaches, declining contact. But Rob kept pestering. The resulting rejections made Rob super-anxious. Seeking ways to resolve it, he turned up at the friend’s house and made annoying phone calls. He formed an unshakeable theory that the old friend in fact did want to renew the friendship. The old friend got angry and called in the police, who asked Rob to stop.

Rob could not believe they were serious. His own behaviour seemed normal to him – so that he concluded the police were mistaken. Once he told the investigating officer that he was “dressed up as a policeman”, that he was a private eye hired to frighten him off. Rob ignored two police warnings and a community resolution, saying he was being victimized because “the police should not get involved in private matters.” Later, of his own choice, he gave up pestering for three months. The police wrote a ‘no further action’ letter.

Six weeks later, Rob got a provocative email from a phoney address. Believing it was from the old friend, at 6 one morning, in a classic ASD anxiety meltdown, he went to the friend’s house to have it out. His behaviour was worrying, the police were called. He was arrested and charged with harassment – legal definition ‘a course of behaviour that causes alarm, and distress’.

Was Rob’s behaviour driven by ASD, mild psychosis or a combination of the two; or by criminality? At Rob’s trial his solicitor argued that Rob’s autistic ‘wiring’ meant he couldn’t know that he’d caused alarm and distress. He tried to persuade the bench that Rob had no mens rea: no guilty mind. To be criminally guilty, you have to have a guilty mind.

However, the court found Rob guilty of harassment. The magistrates were made well aware of Rob’s ASD diagnosis yet the Chair said, with some passion: “I don’t care how you are wired.” He asserted that proof of guilt lay in Rob ignoring the police warnings. This magistrate, by the way, cupped his head in his hands several times in the hearing when defence evidence was given, staring at the ceiling. The sentence was a community order. Rob now entered a downward spiral, compounded by a vivid sense of injustice.

If you think the CJS acted as a blunt instrument in this case, read my next post, which covers how Rob fared under supervision.

 

 

 

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