In The Politics of Autism, I write:
But what is equal treatment? This question raises the “dilemma of difference,” as legal scholar Martha Minow explains. “When does treating people differently emphasize their differences and stigmatize or hinder them on that basis? And when does treating people the same become insensitive to their difference and likely to stigmatize or hinder them on that basis?”[i]
Ned Oliver in The Virginia Mercury:
Virginia lawmakers are advancing legislation that would allow more defendants in criminal cases to present evidence that they suffer from mental illness or intellectual disabilities.
Current state code bars judges and juries from hearing such testimony before the sentencing phase of a trial except in cases in which a defendant pleads not guilty by reason of insanity — a defense that’s difficult to raise in Virginia and, if accepted, can result in indefinite detention in a state mental hospital.
“This is particularly important for people who have autism or who are on the spectrum who often just don’t have intellectual understanding of what certain behavior is,” said Sen. Jennifer McClellan, D-Richmond, who is carrying the legislation in the Senate. “Under current Virginia law, there’s no way for that to be considered at the guilt or innocence phase.”
The legislation is backed by mental health and disability advocates, who say the law’s current prohibition too often traps people with mental health conditions in the criminal justice system.
So far, it’s winning strong bi-partisan support. The House version, sponsored by Del. Jeff Bourne, D-Richmond, advanced from the chamber’s Courts of Justice Committee unanimously, though Republicans in the Senate have taken a more skeptical view.
A. In any criminal case, evidence concerning the defendant's mental condition at the time of the alleged offense, including expert testimony, is relevant and shall be admitted if such evidence (i) tends to show the defendant did or did not have the mental state required for the offense charged and (ii) is otherwise admissible pursuant to the general rules of evidence. For purposes of this section, to establish the underlying mental condition the defendant must show that his condition existed at the time of the offense and that the condition satisfies the diagnostic criteria for (a) an autism spectrum disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association or (b) a developmental disability or intellectual disability as defined in § 37.2-100.
A. In any criminal case, evidence offered by the defendant concerning the defendant's mental condition at the time of the alleged offense, including expert testimony, is relevant, is not evidence concerning an ultimate issue of fact, and shall be admitted if such evidence (i) tends to show the defendant did not have the mental state required for the offense charged and (ii) is otherwise admissible pursuant to the general rules of evidence. For purposes of this section, to establish the underlying mental condition the defendant must show that his condition existed at the time of the offense and that the condition satisfies the diagnostic criteria for (a) a mental illness as defined in § 37.2-100, (b) a developmental disability or intellectual disability as defined in § 37.2-100, or (c) autism spectrum disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.
