The Journal of The DuPage County Bar Association

Back Issues > Vol. 27 (2014-15)

The Intersection of Autism and the Law in Illinois
By Jennifer Wood

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.

Intersection Explained. 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 or reasonable.2

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 further inquiry.

Criminal Law. 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

Family Law. 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 of autism.13

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

Foster Law. 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 they need.

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 by autism.26

The Future 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 distinction:

[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

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).

6 Id.

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

10 In re Benevento, 18 Ill. App. 3d 16, 454 N.E.2d 766 (1983).

11 Id at 19.

12 Id.

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.

16 Id.

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; 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).

28 Id.

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.

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