The Asperger Defense

Originally posted January 2006

In the godawful episode of Boston Legal that I bitched about in my Lights, Camera, Stereotypes post—an episode that featured the preposterous character of a knife-wielding, hostage-taking autistic lawyer—there was a particularly troubling scene in which legal defense options were discussed after the character's arrest. He was advised to consider an "Asperger defense," that is, to claim that he was incapable of controlling his violent impulses because of his autism.

Some criminal defendants have tried to use this false and degrading argument in real life, including one terrorist, even though autistic people are actually much more likely to be victims of violent crime than perpetrators. The courts have had the good sense (so far) not to be gulled by such a reeking, putrid stereotype, but it has been spreading through the media like a fast-metastasizing cancer.

Looking at it from a historical perspective, this certainly wouldn't be the first time. Our society has an embarrassing abundance of precedent for the use of mental inferiority stereotypes to describe minority criminal defendants. Violent crimes by women often were attributed to weak minds and raging hormones. In the 1980s, there were some high-profile court cases involving female criminals whose defense blamed their violence on PMS. This website discusses such cases and the historical context in which they arose:

"A view of women's persona emerged in the 19th century in which females were regarded as innately angelical and by the natural order, incapable of violence. A violent woman was thus unnatural. Since females were the childbearers, they were perceived as passive, weak and highly vulnerable to stress, particularly during pregnancy, the post-partum and menstruation. Women offenders were sick or mad, but not bad!"

When a black man was charged with murder in the United States before the civil rights era, his lawyer (if he was fortunate enough to have a lawyer at all) might argue to the jury that he shouldn't be convicted of first-degree murder because a Negro didn't have the brains to commit a premeditated murder. In the novel A Lesson Before Dying, Ernest J. Gaines writes a fictional (but historically accurate) description of how white lawyers talked about their black clients:

"Gentlemen of the jury, look at him—look at him—look at this. Do you see a man sitting here? Do you see a man sitting here? I ask you, I implore, look carefully—do you see a man sitting here? Look at the shape of this skull, this face as flat as the palm of my hand—look deeply into those eyes. Do you see a modicum of intelligence? Do you see anyone here who could plan a murder, a robbery, can plan—can plan—can plan anything? A cornered animal to strike quickly out of fear, a trait inherited from his ancestors in the deepest jungle of blackest Africa—yes, yes, that he can do—but to plan? To plan, gentlemen of the jury? No, gentlemen, this skull here holds no plans. What you see here is a thing that acts on command. A thing to hold the handle of a plow, a thing to load your bales of cotton, a thing to dig your ditches, to chop your wood, to pull your corn. That is what you see here, but you do not see anything capable of planning a robbery or a murder."

Although the so-called Asperger Defense may be dressed up in more politically correct psychological jargon than the crude stereotypes of the past, it falls into the same despicable category, and it belongs in history's trash can right next to the PMS Defense and the Not a Man Defense.

The autistic character in the Boston Legal episode opted against that defense. Was he a truthful, honorable guy, intent on protecting the civil rights of others like himself? Nope. His main concern was that coming out of the closet as an autistic man would leave him permanently unemployed. From his point of view, the worst that the American criminal justice system could throw at him, no matter what it might be, wouldn't be as devastating as the stigma of being publicly identified as autistic in today's prejudiced society.

Looks like the writers and producers got one thing right... and this is what I have to say to those scumbags: There's a special place in hell reserved for those who, knowing exactly how much harm bigotry does to its victims, deliberately fan its flames for profit.