Asperger’s Disorder, Criminal Responsibility and Criminal Culpability

Psychiatry, Psychology and Law, Vol. 16, No. 1, 2009

Monash University Faculty of Law Legal Studies Research Paper No. 2010/37

Posted: 18 Apr 2011

See all articles by Ian Richard Freckelton

Ian Richard Freckelton

University of Melbourne

David List

affiliation not provided to SSRN

Date Written: 2009

Abstract

Asperger’s syndrome was only formally accepted into the ICD and DSM classifications of psychiatric disorders in the 1990s. It has been written about extensively in the scholarly literature for two decades, but diagnostic tools are continuing to evolve, as well as understanding of its genetic component and its brain development features. In the criminal law context it poses difficult issues at trial and at sentencing. Contextualising Asperger’s disorder within current knowledge about autism spectrum disorders, this article identifies relevant court decisions internationally, and particularly scrutinises selected decisions in the United Kingdom (Sultan v. The Queen [2008] EWCA Crim 6), Victoria, Australia (Parish v. DPP [2007] VSC 494), and Nova Scotia, Canada (R v. Kagan (2007) 261 NSR (2d) 285; (2008) 261 NSR (2d) 168). It argues that Asperger’s disorder needs to be distinguished by the courts from other disorders, such as personality disorders and intellectual disability, and should be recognised as having the potential to affect in important, albeit subtle, ways defendants’ thinking and understanding, as well as their emotional responses to situations that are to them traumatic. This makes Asperger’s disorder relevant to a number of threshold issues in relation to criminal responsibility as well as to criminal culpability.

Keywords: Asperger, Psychiatric Disorders, Legal Responsibility, Autism, Mental Health, Criminal Responsibility, Criminal Culpability

JEL Classification: K00, K1, K14, K4, K40, K42, K49

Suggested Citation

Freckelton, Ian Richard and List, David, Asperger’s Disorder, Criminal Responsibility and Criminal Culpability (2009). Psychiatry, Psychology and Law, Vol. 16, No. 1, 2009 ; Monash University Faculty of Law Legal Studies Research Paper No. 2010/37. Available at SSRN: https://ssrn.com/abstract=1810117

Ian Richard Freckelton (Contact Author)

University of Melbourne ( email )

Parkville, Victoria 3010
Australia
61 3 92257666 (Phone)
61 3 99142790 (Fax)

David List

affiliation not provided to SSRN ( email )

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