Should Asperger Syndrome Be Used as a Defense?

There are those in the Asperger community who suggest that Asperger Syndrome should not be considered a psychiatric diagnosis at all. Using the term “neurodiversity” they assert that Asperger Syndrome, although atypical, is a normal human difference. Individuals with Asperger Syndrome should be respected for their differences according to these advocates.

So where does that leave Gary McKinnon and his obsession? According to the neurodiversity model, Mr. McKinnon should be treated as any other cyber-terrorist. (I presume the other side of being respected for being different is being responsible for one’s actions.) Under the extradition treaty between the U.S. and the UK, he should be extradited to the U.S. and stand trial for the crimes he committed. And if found guilty, I presume the judge and jury would determine a punishment that suits the severity of the crime, even prison. However, even if Asperger Syndrome is used as a mitigating factor, what are those mitigating circumstances? If he was obsessed and didn’t fully comprehend the social consequences of his actions, didn’t he still commit a crime? Didn’t he still harm people?

Another question that comes to mind is whether prison will rehabilitate Mr. McKinnon. Whether he has a developmental disorder or is just a little different than the norm group, won’t he be the same computer hacker he was before he went to prison, still unable to fathom the social world?

The tragedy of allowing the justice system to make judgments about a mental disorder really came home to me when I recently treated a young man with Asperger Syndrome for a brief time, before he was arrested, tried and imprisoned. His life has been a series of unimaginable bad luck as a result of living on the edge of society. He has never been able to secure full-time employment because of his poor interpersonal skills and “mind blindness.” He was alienated from his family years before he was arrested. He lived alone in a small dingy apartment, friendless and trying to survive on a very limited income. His only crime was befriending a young teenage boy who complained of abuse by his parents. The teen’s parents retaliated by accusing the man of molesting the boy. Although this man passed the polygraph and tests for pedophilia, he was convicted and sent to prison anyway because the court psychologist reported he had “no remorse.”

First of all, it is hard to have remorse for a crime you didn’t commit. Secondly, a classic characteristic of Asperger Syndrome is the inability to convey one’s feelings to others. No doubt this man was depressed and frightened, but all he could do was sit motionless in the examining psychologist’s office. Now he sits in prison.

Does McKinnon Need a Doctor or Prison?

I wish I could tell you that I had the answers to this dilemma. I do believe that Asperger Syndrome is a developmental disorder, worthy of diagnosis and treatment. There is a lot of suffering among those in this population, including their loved ones. And there are psychological treatments that alleviate some of this suffering, with inspiring new research breaking ground daily. So I would hate to see people continue to suffer simply because this diagnosis is part of a political debate.

Likewise it is just too simple to turn over to the justice system an individual who is disabled by the peculiarities of Asperger Syndrome. Gary McKinnon did commit a crime. He has publicly admitted to everything, though he didn’t come forward until he was caught. He engaged in subterfuge to hide his identity, so he was capable of comprehending that what he was doing was wrong, or at the very least could get him caught. Yet he persisted to engage in those actions because he was obsessed beyond common sense, a classic characteristic of Asperger Syndrome. Like Howard Hughes (who some suggest had Asperger Syndrome) in his obsessive search for ever more efficient airplanes, McKinnon was determined to uncover the truth — that the U.S. military is holding out evidence of anti-gravity propulsion systems. Would an ordinary person risk going to prison over UFOs?

The bottom line is intention. If the news stories are accurate McKinnon did not set out to harm anyone. Neither did my unfortunate client, and he is hardly a threat to anyone. So the legal experts need to determine how to protect the citizenry from people who commit crimes, whether intended or not, and whether people like Gary McKinnon are really a threat to society. And the mental health experts need to determine how to successfully treat those with Asperger Syndrome. But what do you do when these two worlds collide?

Thomas Szasz, a psychiatrist in the “antipsychiatry” movement, wrote an article in 1960 entitled “The Myth of Mental Illness,” wherein he proposes that it is dangerous to make mental health care a political issue. You can only imagine the ramifications if the government controls who is mentally fit. According to Szasz’s controversial view, Gary McKinnon needs a doctor and he should be held accountable for his actions, regardless of whether he fully understood the outcome or was obsessed with his mission. And at the other end of this continuum, if mental health care and the justice system were separate, as they should be, my young client would not be in prison for the non-crime of having poor interpersonal skills.


Baron-Cohen, Simon and Frith, Leslie (1985). “Does the autistic child have a ‘theory of mind’?” Cognition 21 (1): 37–46.

Espiner, Tom. (March 17, 2009). “Terry Waite speaks for NASA hacker.” CNET News:

Hancock, Simon. (March 2009). “Clock ticking for hacker McKinnon.” BBC News.

Seidel, Kathleen.

Szasz, Thomas. (1960, February). “The Myth of Mental Illness.” American Psychologist 21, 113-118.

Kathy J. Marshack, Ph.D. is a licensed psychologist and author of the recently released book, Life with a partner or spouse with Asperger Syndrome: GOING OVER THE EDGE? (2009, Autism Asperger Publishing Co., USA). Dr. Marshack was also recently interviewed by USA Today on the subject of adults with Asperger Syndrome. Visit her website at