How the legal system fails autistic people | Franaaz Khan | TEDxUniversityofJohannesburg

Key Concepts

• Neurodiversity: The idea that neurological differences, such as autism, are natural and normal variations of the human genome, rather than disorders.
• Autism: A developmental disorder characterized by difficulties with social interaction and communication, and by restricted and repetitive patterns of thought and behavior.
• Neurotypical: Referring to a person who is not neurodivergent; having typical neurological development or functioning.
• Reasonable Person Test: A legal standard used to determine whether a person's conduct was negligent or otherwise legally culpable, by comparing it to what a hypothetical "reasonable person" would have done in similar circumstances.
• Delict (South Africa) / Tort Law (Other Jurisdictions): A branch of private law that deals with civil wrongs, causing harm or injury to another person, for which the law provides a remedy (e.g., compensation).
• United Nations Convention on the Rights of Persons with Disability (UNCRPD): An international human rights treaty intended to protect the rights and dignity of persons with disabilities.

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The Playground Incident and a Legal Dilemma

The speaker recounts a personal experience on a Saturday morning at a play park with her two young daughters. Her autistic daughter pushed another child, leading to a furious confrontation with the other child's father, who perceived the action as defiant and questioned the speaker's parenting. The speaker realized that in her daughter's world, pushing was an "invitation to play" and a way to "be friends," highlighting the communication challenges faced by neurodivergent individuals who may struggle with verbal expression. This incident prompted the speaker to reflect on how such behavior would be judged within the legal system.

The "Reasonable Person Test": A Flawed Legal Standard

The speaker introduces the "reasonable person test," a measure used in law to judge a person's conduct. She explains that this test, as currently applied, "does not take into account a neurodivergent person or an autistic person." This led her to conclude that the law, which she previously viewed as neutral, objective, and universal, "quietly erased difference."

Application in Delict/Tort Law: The speaker elaborates on this within the context of South African private law, specifically "delict," known as "tort law" in other parts of the world. Tort law provides a legal remedy for individuals who have sustained harm or injury due to the conduct of another person. An example provided is a motor vehicle accident where a flashy sports car is damaged, and the driver sustains physical injuries and medical bills due to the negligent driving of another motorist.

Case Law and Critique: In South Africa, cases like Krueger versus Katsier guide the understanding of negligence, asking: "Did the negligent driver act as a reasonable person would have? Would a reasonable person in the position of the negligent driver prevent that harm?"

The speaker argues that while this test appears objective and fair on the surface, it is "rigged from the very start." This rigging stems from the fact that the reasonable person test is based on a "neurotypical person"—an individual assumed by the law to anticipate all sorts of risks and read various social cues. For a neurodivergent person, who "sees the world very differently," this test is inherently unfair. They will "always be judged against a standard that they will never attain," which the speaker describes as "exclusion masked as objectivity."

Advocating for Legal Transformation and Inclusivity

The speaker emphasizes that the law already adapts to certain categories of persons, such as children (considering their age and maturity) and professionals (considering their skills). She questions why it should not similarly adapt to neurodivergent individuals.

Proposed Adaptation: The speaker proposes asking: "What would a reasonable neurodivergent person have foreseen in the circumstances?" She clarifies that this adaptation would not excuse harm, and accountability would still remain. Instead, it would allow the law to "adapt and transform and speak to the voice of our constitution that urges us to develop the law in order to recognize equality, dignity and diversity."

Global Relevance and International Calls for Reform

The problem of the reasonable person test's neurotypical bias is not unique to South Africa; it is a "universal problem."

• United Kingdom: Despite increased awareness of disability rights in workplaces and classrooms, tort law "remains static."
• Canada: Possesses strong jurisprudence on equality, yet the reasonable person test "has not changed."

The speaker highlights the United Nations Convention on the Rights of Persons with Disability (UNCRPD), which "urges states around the world to reform their legal standards in order to recognize and not discriminate indirectly."

South Africa's Opportunity to Lead

South Africa has a unique opportunity to "lead" and "evolve the law for the betterment of society." The speaker argues that society's realities are found in "the playground," "the workplace," and "the classroom," not solely in case law or legal rules. She believes that the law can serve as a "guiding light to society," conveying the message that "being different is not a disorder" but "part of the fabric of humanity."

Conclusion: Rewriting Reasonableness for Justice

Revisiting the playground incident, the speaker acknowledges that harm resulted from her daughter's push, but stresses that "the meaning behind her actions were very different." The current legal framework, she contends, "has no space to see this difference... not as yet."

The core message is that "Sameness is not fairness." When neurodivergent individuals are measured against a rigid, neurotypical standard, it results in "exclusion and not justice." The speaker calls for a fundamental shift: "It's time where we rewrite reasonableness." She urges listeners to question, "Reasonable to whom?" whenever they encounter the phrase "reasonable person."

Using the metaphor of a butterfly dress, which represents transformation and the emergence of wings through struggle, the speaker concludes that the law, too, can "unfold its wings to embrace dignity, equality as well as diversity." This transformation is necessary "not just for the law but for greater humanity."