Recent case law in Illinois indicates that the state’s legal system, as a whole, is both unprepared
and unforgiving of the effect of autism on the law. The ever-increasing diagnoses of
autism spectrum disorder are overwhelming all aspects of our public support systems and
the related legal entities, as well as changing the basic nature of all areas of the practice of private
law. On its face, this immediately highlights the need for increased resources, funding, training,
and education within the legal system.
As the diagnoses for autism spectrum disorder will likely
increase in the years to come, our legal system in Illinois
will face significant challenges, particularly in the areas of
Criminal Law, Family Law, and Foster Law.
Autism spectrum disorder manifests itself in a variety
of ways. Most notably, those affected by autism can experience
significant difficulties with social interaction, including
a lack of eye contact, inability to read facial expressions or
social cues, inappropriate physical proximity, and seemingly
unsuitable commentary or conversations. Some have a tendency
to fidget, flee, or wander, and may be non-verbal.
Others are even further impacted by a pronounced sensory
affective disorder, and urgently avoid things displeasing
to their senses and uncomfortable to them. Inversely, some
with sensory affective disorder seek out more intense sensory
input, which can run averse to mainstream interests and
understanding, and be interpreted as injurious behavior or
sexual deviancy, for example. These behavioral tendencies
in some, in combination with the oft-misunderstood social
communicative idiosyncrasies that can characterize those
with autism, predispose them to be both victims and perpetrators
by the very nature of their disorder.
Thus, autism is relevant to both knowledge and intent,
both of which are necessary for legal prosecution. Autism
impacts both legal concepts. For those severely impacted by
autism, their knowledge of the prohibited consequences may
be significantly distorted by the severity of their disorder.
Oftentimes, however, those with autism are extremely intelligent
and therefore, automatically assumed to be knowledgeable
and, consequently, culpable.
With respect to intent, those with autism are fundamentally
disadvantaged by the Illinois legal system. Courts
impute intent using the “reasonable person” standard.
However, the reasonable person is a legal fiction and has
been referred to as “an objective yardstick against which
to measure the culpability of real people.”1 Yet, for every
1 in 68 real people, this “real” person is an autistic person; therefore this measure is not objective
There are a number of recent cases
featuring autism. Perhaps this is because
the diagnoses of those on the spectrum
have been steadily rising, and perhaps
this is because our laws and legal systems
are incompatible with the disorder.
Acting on the proposition that both are
true, the intersection of autism and the
law is producing numerous, published
results in case law in Illinois, and warrants
In Illinois, when autism has been used as a sword, parties
have experienced varying degrees of success depending
on the degree of the legal transgression. The more serious the
crime, the more inconsequential autism will be in adjudicating
the result. In other words, the more grave the offense, the
less likely the courts are to permit autism as an excuse.
In People v. Frank-McCarron, a mother who was convicted
of first-degree murder for killing her three year-old
autistic daughter and sentenced to 36 years in prison, tried
to prove, on appeal, that she was insane at the time of the
murder.3 In short, the defendant theorized that she believed,“[T]o get rid of autism I had to kill a child.”4 She attempted
to use autism as an excuse for murder.
People v. Sargent further demonstrates that individuals
with autism are especially vulnerable to criminal predators.5
In 2010, the Supreme Court of Illinois upheld the sentence
of natural life imprisonment for a stepfather convicted of
predatory criminal sexual assault of his two stepsons, one autistic,
the other a preschooler.6 Expressive challenges make an
autistic person, at any age, an ideal target for a sexual predator,
as one with communication difficulties is unlikely to
report abuse. The same challenges place an autistic person at
risk to become a victim of a range of criminal behavior, from
financial schemes, to those more emotionally debilitating
and psychologically paralyzing.
The relevance of autism can present a distressing
challenge for the trier of fact. With autistic parties, it is challenging to determine where the
innocence ends and the culpability
begins. One such controversial case
in Illinois is that of People v. Ramsey,
decided by the Illinois Supreme
Court in 2010.7 The defendant,
Daniel Ramsey, who has autism,
became angry by a comment his
girlfriend made, and then murdered
several people as a result.8
A close examination of
the record indicates that Mr.
Ramsey’s problems with Asperger’s
Syndrome (a form of autism)
were well-established long before the crimes took place,
and specifically itemized as part of the legal proceedings.
Considering that autism, and Asperger’s Syndrome specifically,
were recognized as legal impairments by various recognized
governmental agencies, including the Social Security
Administration, at the time of Ramsey’s trial, it is curious that
Mr. Ramsey was sentenced to death, considering his impairment
was widely known and well-documented, yet he was
afforded no treatment.9
When autism is a factor in a divorce, the disorder can
have a meaningful effect on all aspects of the dissolution,
from the calculation of child and spousal support to the determination
of custody. If a child has autism, a court will need
to consider this carefully when making a custody determination.
Fitness for the long-term custody and care of an autistic
child is quite different from the legal definition of fitness for
parenting in Illinois. The care of an autistic child can be extremely
challenging and requires an exceptionally dedicated
individual with pronounced emotional fortitude. Thus, fitness
for parenting an autistic child exceeds the standards of
a typical custody determination. Without more information
about the disorder, those who determine custody might not
consider the factors that alter the practical meaning of fitness
within the context of autism.
Autism can restrict parenting rights in Illinois in many
respects. For example, in In re Benevento, a mother lost custody
of her minor daughter due to the effects of autism in her adult son who lived in the same residence.10 The Illinois
Appellate Court upheld an award of custody of a three-and a-half year-old girl to her father on the basis that her mother
also had an 18 year-old autistic son
(from another marriage) who frequently
masturbated.11 While the
mother denied that her son ever
masturbated in the presence of her
daughter, and presented evidence
in court proving that he had moved
out of her home, the court still maintained
that there was a “very real concern
over the behavior of [the son]. .
.”12, even though this type of sensory
behavior is directly related to a diagnosis
Nolan v. Peters, demonstrates
the development of the Illinois legal system’s understanding
of autism.14 In Nolan, even though the trial court approved
a change of custody to the father of an autistic child because
his home was more organized, the appellate court reversed,
recognizing the importance of the mother’s role in improving
the potential for the child’s autistic condition such as by initiating
his individualized education plan (or IEP- a child’s plan
for special education in the public school system; a legally
binding document).15 Reverting to the best interest standard
of 750 ILCS 5, Sec. 602 (a), the Nolan court prioritized the
IEP above the residential environment, thus signaling the
impact of autism on custody.16
The special education needs of an autistic child can
be informative in other critical matters, such as removal of
children to another state. In Cosmini v. Cosmini, while the
mother of two children, one with a diagnosis of autism, did
not have unlimited resources or extraordinary circumstances,
the simple fact that the father of the autistic child was in denial
that he had autism, was enough for the court to rule in
the mother’s favor and grant removal.17
Autism can be a factor when petitioning the court to
modify child support. A diagnosis of autism brings with it additional costs that can include therapy, medication, customized
equipment, specialized treatment, residential care,
and limitless other possible expenses. In Gantner v. Manne,
four years after being awarded sole
custody of and child support for
her two children, one who has autism
and the other who is also diagnosed
with special needs, a mother
petitioned the court for an upward
modification in the amount of support
she received.18 The court was
receptive to the mother’s pleas for
additional assistance, referring to
her financial burdens due to special
needs expenses as “crushing”, and
ordering an upward modification of
child support payable by the father.19
Over 17,000 youths currently make up the Illinois
foster care system, and, of those 17,000 youths, more than
one-third of them are enrolled in the state’s special education
programs.20 Placement of these at-risk and in-need youths
follows the same pattern being set in family law courts; the
person who shows interest in the special needs of the children
is the person (or entity) who is awarded custody.
As more and more children are diagnosed with autism,
one particular type of special needs child in the Illinois foster
care system is on the rise: the autistic child. There is no shortage
of cases in recent years requiring state intervention for
the welfare of autistic children that results in their removal
from the family home and placement in foster care. In the
majority of these cases, parental rights are terminated for the
same primary reason parents in divorce cases lose custody of
their children, they fail to get their autistic children the help
In People v. Huffman, the trial court noted that the foster
parents provided an autistic child with speech and occupational
therapy and other services for his developmental delays
that he had never received before.21 The court found that the child had “dramatically improved” for this and other reasons,
and so the birth parent’s rights were terminated.22
In People v. Arissa, the court terminated the parental
rights of a birth mother for not following through on an early
intervention referral for her autistic child.23 The failure of a
parent to take the recommendations of state agencies seriously
is not looked upon favorably by Illinois courts. In People
v. J.H.N. (In re M.M.), the Appellate Court for the Third
District affirmed termination of a father’s parental rights for
not making a significant effort to learn sign language in order
to communicate with his non-verbal, autistic son, after being
ordered to do so at a permanency review hearing.24
Ultimately, the simple reality for most of the autistic
children in Illinois who will end up in foster care is that they
will be placed there because their parents cannot manage either
their behavior or care. People v. Rosanna reflects what life
is like for autistic children whose parents cannot commit to
life with their disorder.25 The court record indicates that the
mother in this case was “a loving parent, but not a capable
parent,” in light of the “very demanding challenge” presented
Some rulings illustrate a continued resistance by
Illinois courts to recognize the relevance of autism or acknowledge
that it warrants special consideration in specific
legal circumstances. For example, consortium actions ask
for benefits that a person is entitled to receive due to a loss
of companionship, cooperation, affection, aid, or financial
support. In Koskela v. Martin, the court declined to recognize
a paternal consortium action involving autism.27 In Koskela, the father of a non-verbal daughter with severe
autism was injured in an accident.28 Her father, now
permanently hospitalized, was previously responsible for
driving her to school and for all of her personal care and
supervision due to the gravity of her disorder.29 The Illinois
Appellate Court was wary of extending loss of consortium
beyond spouses for fear of extending the boundaries of
potential litigation too wide.30 The Appellate Court ex-pressed that, “While we are sympathetic to plaintiff’s circumstances
in the pending matter . . . [t]he determination
of where a negligent act in this instance has an end to its
legal consequences is best left to the legislature.”31
The Illinois Appellate Court showed similar reluctance
to rule in the spirit of protecting autistic persons lest
it should limit public policy in Downey v. Wood Dale Park
Dist.32 In Downey, an autistic child died after being improperly
supervised during a summer camp outing.33 His parents
relied on the special duty doctrine, but the court reasoned
that no special duty existed in Downey based on the following
[T]he complaint alleged that the Park District“was uniquely aware of [the (autistic) child’s] disabilities,
including but not limited to his inability
to perceive danger, inability to follow instructions
and his propensity for unpredictable behavior.”
However, the complaint did not allege that the Park
District knew that [the child] was likely to break
away from his fellow participant’s hand or that [the
child] might suddenly run into the street, which are the particular risks which endangered [the (autistic) child].34
Had the complaint alleged that the Park District knew
these specific behaviors would result from a lack of supervision,
and had the plaintiff been able to prove that the Park
District had this specific knowledge, then the Park District
would have been liable under the special duty doctrine.
This demonstrates a prodigious setback in the legal understanding
of autism. The disorder itself is characterized by
this very lack of predictability, which, by definition means
that such behavior cannot be expected, projected, or itemized
in advance. To require such warning of those for whom
this is impossible due to a disorder, is a legally discriminatory
expectation. Additionally, to exempt the autistic, because of
the nature of their disorder, from a legal exception that would
otherwise allow them recovery, is equally as inequitable.
In the end, the Downey court hesitated to place blame
upon the Park District for fear that permitting such legal liability
in one instance would ultimately make park districts
everywhere liable in a multitude of circumstances and therefore,
eventually, unable to service the general public.35 On the surface, this appears to be decidedly at odds with the various
provisions of federal law articulated in the Americans
with Disabilities Act (ADA).36 In this respect, Illinois must
be prepared to find another way to protect the public policy
it values while respecting federal laws of equity.
School districts can also be very resistant to the unique
changes and creative solutions that autism requires.
Therefore, Illinois courts are frequently called upon to interpret
statutory law related to education. Two examples of such
judicial interpretations involve the same provision of the
Illinois School Code at play in two unrelated school districts.
While Illinois School Districts No. 302 and No. 4 tried to
restrict the application of legal disability provisions to autistic students, the courts in both K.D. v. Villa Grove Cmty. Unit
Sch. Dist. No. 302 Bd. of Educ., and Kalbfleisch v. Columbia
Cmty. Unit Sch. Dist. Unit No. 4, reached the same conclusion,
that service dogs for autism must be allowed in schools
under 105 ILCS 5/14-6.02.37
As the diagnoses of autism in Illinois continue to increase,
it is important to prepare Illinois legal systems to deal
with this unique subset of parties, perpetrators, and victims.
Of critical importance in the years to come, will be increased
opportunities for lawyers, judges, and other legal advocates
to learn more about autism through continuing legal education
opportunities, thorough research, interaction with experts,
and receptivity to creative solutions.
1 Gibbon, K. (n.d.). Homicide law reform, gender and the provocation defense: A comparative perspective.
2 Centers for Disease Control and Prevention, Press Release, March 27, 2014 (available at http://www.cdc.gov/media/releases/2014/p0327-autism-spectrum-disorder.html).
3 People v. Frank-McCarron, 403 Ill. App. 3d 383, 934 N.E.2d 76 (2010).
4 Id at 388.
5 People v. Sargent, 239 Ill. 2d 166, 940 N.E.2d 1045 (2010).
7 People v. Ramsey, 239 Ill. 2d 342, 942 N.E.2d 1168 (2010).
8 Id at 351-352.
9 The Official Website of the U.S. Social Security Administration, Social Security (available at http://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm).
10 In re Benevento, 18 Ill. App. 3d 16, 454 N.E.2d 766 (1983).
11 Id at 19.
13 George M. Realmuto & Lisa A. Ruble, Sexual Behaviors in Autism: Problems of Definition and Management, Journal of Autism and Developmental Disorders, Vol. 29, No. 2 (1999).
14 Nolan v. Peters, 2011 Ill. App. Unpub. LEXIS 622.
15 Id at 35-36.
17 Cosimini v. Cosimini, 2012 Ill. App. Unpub. LEXIS 220; 2012 IL App (1st) 112801U.
18 Gantner v. Manne, 2011 Ill. App. Unpub. LEXIS 2903; 2012 IL App (1st) 102381U.
19 Id at 16.
20 Child Welfare League of America, Illinois Fact Sheet, 2012 (available at www.cwla.org/advocacy/statefactsheets/2012/illinois.pdf); United Cerebral Palsy and Children’s Rights, Forgotten Children: A Case for Action for Children and Youth with Disabilities in Foster Care, 2006.
21 People v. Huffman (In re R.H.), 2012 Ill. App. Unpub. LEXIS 1529; 2012 IL App (4th) 120092U.
22 Id at 15.
23 People v. Arissa (In re A.S.), 2012 Ill. App. Unpub. LEXIS 1159; 2012 IL App (3d) 120086U.
24 People v. J.H.N. (In re M.M.), 2011 Ill. App. Unpub. LEXIS 2327; 2011 IL App (3d) 110441U.
25 People v. Rosanna W. (In re C.W.), 199 Ill. 2d 198, 766 N.E.2d 1105 (2002).
26 Id at 205-206.
27 Koskela v. Martin, 91 Ill. App. 3d 568, 414 N.E.2d 1148 (1980).
29 Id at 569.
30 Id at 572.
31 Id at 571.
32 Downey v. Wood Dale Park Dist., 286 Ill. App. 3d 194, 675 N.E.2d 973 (1996).
33 Id at 198.
34 Id at 204.
35 Id at 204-205.
36 Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq. (1994)) and the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq. (1988)).
37 K.D. v. Villa Grove Cmty. Unit Sch. Dist. No. 302 Bd. of Educ., 403 Ill. App. 3d 1062, 936 N.E.2d 690 (2010); Kalbfleisch v. Columbia Cmty. Unit Sch. Dist. Unit No. 4, 396 Ill. App. 3d 1105, 920 N.E.d 651 (2009).
Jennifer J. Wood is
the founder of Wood
Law, P.C., a law
firm dedicated to
the practice of family
law and school law
with an emphasis
on special needs
concerns. Ms. Wood represents families
challenged by special needs in school
disputes, such as IEPs and due process hearings, and family law matters, such as divorce and custody.