Neurodiversity and Civil Rights

Working with a judge on an amnesty committee in post-apartheid South Africa, Dr. Andrea Lollini was surprised that perpetrators of apartheid-era crimes claimed they could not remember the crimes they were accused of — they must have “blacked out,” they said. Psychologists at the time considered the possibility that the accused might be suffering from PTSD, just as their victims were.

Lollini found this interface between the law and neurocognition fascinating. Now as a visiting scholar at UC Hastings Consortium on Law, Science and Health Policy, Lollini researches the difficult and fraught relationship between the law and those who are have autism spectrum disorder (ASD) or have learning disabilities. He delivered a lecture on February 25 at Langley Porter as part of the STAR Center Spotlight Series.

“Science is creating, in one way or another, a new anthropology,” Lollini said.

He noted that though neuroscience continues to provide us with a more complex understanding of ourselves, the legal system both here in the United States and abroad in Europe have not adapted. These systems continue to rely on a more neurotypical understanding of behavior and crime. Much of Lollini’s passion for his research comes from his support for the neurodiversity movement.

Lollini considers neurodiversity a civil rights movement. It seeks to change how we perceive what is “normal” cognition and embrace the diversity of minds that exists within our society. In other words, the movement calls for the erasure of stigma surrounding those on the autism spectrum or with learning disabilities and a concomitant change in the legal structures that might sometimes punish those who are not considered “normal.”

Over the last 15 years there has been a massive expansion in prevalence rates for ASD and learning disabilities, in large part due to increased screening, awareness, and diagnosis. Examining judicial cases at the highest courts in various European nations as well as here in the U.S. between 2010 and 2018, Lollini found an astoundingly parallel rise between new diagnoses of ASD or learning disorders and legal cases involving these conditions.

Many of these were cases about access to public education, resources, or insurance. Many were more fraught: criminal law or labor law cases. Those on the spectrum were on both sides, victims and accused. Complicating this was the fact that among resources those on the spectrum or with learning disabilities might not be able to access are legal services. The lower the socioeconomic status they come from, the worse this access issue can be.

Lollini’s review of ASD diagnoses and judicial cases found that among the increasingly large neurodiverse population, two-thirds did not have a clear intellectual disability and thus would be considered by many in the judicial system as neurotypical. Regardless of whether this is appropriate, this population is highly marginalized and often lack the resources to deal with increased legal scrutiny. Moreover, many on the spectrum may respond to stressful situations with behavior that a judge or jury might consider suspicious, such as reduced eye contact, formal language, and avoidance. A lack of understanding of naturally varying neurocognitive traits, Lollini concluded, is frankly dangerous.

The legal system, he said, “is designed in a way that might consider several elements connected to their behavior as criminal offenses.”

In fact, studies showed that 85% of juveniles involved in the juvenile legal system in the U.S. had diagnosed learning or emotional disabilities. A 2004 study also showed that 31% of U.S. federal level inmates had reported speech and/or reading disabilities. Similar statistics are found in European nations.

What can be done? Lollini believes this is an area of collective responsibility. He hopes for a system of “brain-based equality,” wherein we change how our socio-legal system evaluates what are important elements of “appropriate” cognitive ability and behavior.

Our perceptions of what normal behaviors or thought processes are is strongly informed by societal norms, he reminded the audience; yet when it comes to the legal system, we judge the individual’s behavior without considering society’s role in the situation.

“The notion of neurodiversity is controversial,” he said, but he hopes that at least “a basic understanding of science and statistics” regarding neuroscience can take root in the legal profession.

“Every age has added a fundamental right to the Bill of Rights,” Lollini said. “Modern constitutions keep adding new grounds of non-discrimination.”

His hope is that our age will add neurodiversity and the relationship between brain and environment to that list.