Autism and the Dismissal of Criminal Charges in Virginia

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Virginia’s criminal justice system has recently acknowledged that autism can contribute to an individual being arrested, and a result, it now allows for the dismissal of criminal charges in some cases. This is especially true for internet sex offenses such as possession of child pornography and solicitation of a minor.

Under Virginia law, there is a process to deferring prosecution and ultimately winning dismissals for individuals with such a diagnosis.

Autism and the Criminal Justice System
Studies have long shown the people who live with Autism Spectrum Disorder (ASD) are treated unfairly by our criminal justice system as these individuals are less likely to appreciate societal norms and understand criminal laws. Symptoms of autism typically begin in childhood and are marked by problems in how an individual views and socializes with others. The term “spectrum” in ASD refers to a wide range of symptoms. For instance, Asperger’s syndrome, which was formerly considered a separate condition, is now considered to fall under the umbrella of ASD.

Many of the symptoms – communication problems, social interaction problems, and repetitive behaviors – lend themselves to individuals being caught up in criminal cases, especially those involving internet sex offenses such as downloading child pornography or communicating with minors online.

Autism and Sex Offenses in Virginia
People diagnosed with autism may find themselves charged with internet sex offenses such as possession of child pornography and online solicitation of a minor. Psychologists that are experts in ASD will typically explain that one reason for this is that individuals with autism may have a high IQ but low emotional or social IQ.

This imbalance between intellectual and emotional abilities can cause individuals with ASD to self-isolate and use the internet as a means to explore the world. Individuals with autism may also have the sexual curiosity of an adult but their emotional maturity may more closely reflect a child’s. Combined with an underdeveloped ability to understand societal norms and appreciate criminal laws, they can find themselves being the target of criminal investigations involving talking to minors online or downloading child pornography.

Autism and Dismissal of Criminal Charges
Virginia law provides an opportunity for people diagnosed with autism to have their criminal charges deferred and dismissed in many cases (although there are some exceptions). Under Virginia Code § 19.2-303.6, a judge may defer proceedings and place an individual with autism on probation. If the individual successfully completes probation, the judge can discharge the individual and dismiss the charges against the person without an adjudication of guilt. In order for the court to do so, the accused individual must show the following:

The person has been diagnosed with Autism Spectrum Disorder by a clinical psychologist or psychiatrist;
The person must show by clear and convincing evidence that the criminal conduct was caused by or had a direct and substantial relationship to the person’s autism.

What if You Weren’t Previously Diagnosed with Autism?
You can still be eligible to have your case dismissed even if you weren’t diagnosed with autism prior to your arrest. In our experience, many people charged with sex offenses have had suspicions that they might have autism but haven’t previously sought formal help or a diagnosis.