Forensic psychiatrists and neuropsychiatrists are likely to encounter individuals with intellectual disability as they are over‐represented in the judicial system.

1. Received: 24 July 2023
-Revised: 22 January 2024
-Accepted: 12 February 2024
DOI: 10.1002/bsl.2653
R E S E A R C H A R T I C L E
Forensic psychiatric issues in intellectual
disability
Mark J. Hauser1
| Robert Kohn2
1
Department of Psychiatry, Harvard Medical
School, Newton, Massachusetts, USA
2
Brown University School of Public Health,
Providence, Rhode Island, USA
Correspondence
Mark J. Hauser, Department of Psychiatry,
Harvard Medical School, 16 Converse
Avenue, Newton, MA 02458, USA.
Email: mark_hauser@hms.harvard.edu
Abstract
Forensic psychiatrists and neuropsychiatrists are likely to
encounter individuals with intellectual disability as they are
over‐represented in the judicial system. These individuals
may have the full range of mental illnesses and comorbid
conditions, including physical infirmity, sensory deficits,
language impairment, and maladaptive behaviors. They are
frequently disadvantaged in the judicial system due to lack
of comprehension, lack of accommodations, and stigmati-
zation. Decision making capacity may need to be assessed
for health care, sexual autonomy, marriage, financial man-
agement, making a will, and need for guardianship. The
usual approach to conducting an evaluation needs adap-
tation to fit the unique characteristics and circumstances of
the individual with intellectual disability. The forensic
consultant can assist attorneys, defendants, and victims in
recommending accommodations and the expert witness
can provide education to juries.
K E Y W O R D S
capacity, caregivers, criminal justice system, death penalty,
intellectual disability, victimization
1 | NEURODEVELOPMENTAL DISORDERS: INTELLECTUAL DISABILITY
1.1 | Overview of intellectual disability
1.1.1 | Evolution of the definition of intellectual disability
In 2010, Congress passed Rosa's Law, which requires that references in federal law using the phrase mental
retardation be updated to intellectual disability (ID) and requires first‐person usage by changing references to a
Behav Sci Law. 2024;1–16. wileyonlinelibrary.com/journal/bsl © 2024 John Wiley & Sons Ltd.
- 1

2. mentally retarded individual to an individual with ID (Public Law 111‐256, 2010). In 2014, opinions rendered by the
US Supreme Court in Hall v. Florida the term mental retardation was no longer deemed appropriate for use in legal
documents and proceedings.
ID is defined in DSM‐5 (American Psychiatric Association, 2013) as a disorder with onset during the devel-
opmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical
domains. DSM‐5 no longer relies predominantly on intelligence quotient (IQ) test scores in defining severity of ID;
instead it focuses on deficits in intellectual function, such as reasoning, problem solving, planning, abstract thinking,
judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individu-
alized standardized intelligence testing, and on deficits in adaptive function that result in failure to meet devel-
opmental and sociocultural standards for personal independence and social responsibility. There are three domains
to adaptive functioning: conceptual, social, and practical (see Table 1, Patel et al., 2020).
This marked change in DSM‐5 has significant implications in forensic psychiatry and neuropsychiatry. The
decoupling from the IQ is of major significance as there have been questions of interpretation and validity, false‐
inflation, and false‐deflation (Hagan & Guilmette, 2015). When the IQ test is offered as proof of ID in forensic
matters IQ test data may be open to increased challenges. Interpretation of who has ID may be broadened or
restricted, as the diagnostic criteria are no longer constrained by numerical parameters (Papazoglou et al., 2014). In
particular, the diagnosis may be broadened to include individuals who are at the upper range of impaired score who
previously would not have been diagnosed with ID due to rigid reliance on IQ scores (Greenspan & Woods, 2014),
as illustrated by the US Supreme Court death penalty case Hall v. Florida (Cooke et al., 2015).
The diagnosis of ID, beyond the role of IQ testing, encompasses a broader range of issues. The seven domains
of intellectual functioning in DSM‐5 may not all be confirmable by psychological testing and the use of the term
‘such as’ prior to the list of domains indicates that there are still other functions that merit consideration (Hauser
et al., 2014). At times in forensic proceedings, the fallacious argument has been made that the relevant deficits in
adaptive behavior must be caused by low intelligence (Olley, 2013). However, no causal link is required with IQ or
low intelligence and deficits in adaptive behavior. ID is a heterogenous disorder with a broad range of etiologies and
a range of severities.
1.1.2 | Epidemiology
The National Health Interview Survey of children with an age range of 3–17, found a prevalence rate of 1.19% for
ID in 2017 in the United States compared to 0.93% in 2009 (Zablotsky, et al., 2019). In a national probability sample
of persons ages 13–18, 3.2% met DSM‐5 criteria for ID (Platt et al., 2019). A review of studies conducted in
the United States since 2010 reported a prevalence among children of 1.1%–1.3% and among adults of 1.1%–1.5%
(Anderson et al., 2019). The Global Burden of Disease study for the United States estimates for the
T A B L E 1 Domains of adaptive functioning.
Domain Functions
Conceptual Memory, language, reading, writing, math reasoning, acquisition of practical knowledge,
problem solving, and judgment in novel situations
Social Appreciation of others' thoughts, feelings, and experiences; empathy; interpersonal
communication skills; ability for developing friendships; and social judgment
Practical Self‐care; job responsibilities; financial management; recreation, behavioral control; school
and work task organization
Note: Adapted from Patel et al., 2020.
2
- HAUSER and KOHN

3. prevalence of ID are considerably lower, which is 0.44% across the age spectrum (Institute for Health Metrics and
Evaluation, 2019).
People with ID experience more difficulty accessing health care compared to people without ID and therefore
may have more untreated behavioral issues (Havercamp & Scott, 2015). Avoidable deaths have been noted due to
encountering difficulties in communication, caregivers not recognizing physical symptoms, complaints being
attributed to ID, and physician misdiagnosis (Tuffrey‐Wijne, 2003). The life expectancy, although lower than the
general population, is approaching that of the general population, except for severe and multiple disabilities
(Stankiewicz et al., 2018). The increased longevity has placed additional demands on specialized services and
supports for the aging population, in particular residential services. The chance of encountering forensic issues has
increased.
Wrongful birth lawsuits have been brought for misdiagnosis of the fetus with a severe congenital abnormality,
failure to inform or neglect genetic counseling, and birth damages. Rarely a successful wrongful life lawsuit may be
brought by an individual with ID. For many individuals the etiological cause resulting in ID remains elusive. A
genetic cause can be detected in over 15% of the cases (Visser et al., 2016). Numerous risk factors have been
identified, including maternal and paternal prenatal factors, perinatal factors, neonatal factors, acquired childhood
diseases, head injury, environmental factors, and psychosocial factors. Most maternal and pregnancy‐related risk
factors are associated with mild‐moderate ID rather than severe‐profound ID.
Few community‐based population studies exist examining psychiatric comorbidity. Adult individuals with ID
experience higher rates of psychiatric disorders than the general population, with 15.7% point prevalence and 6.8%
two‐year incidence in one study (Cooper et al., 2007; Smiley et al., 2007). The most prevalent mental disorders are
affective disorders. In the United States compared to those without ID individuals with ID ages 13–18 had a
significantly higher prevalence of mental disorders in particular specific phobia, agoraphobia, and bipolar disorder.
Those with ID 65% had a comorbid lifetime mental disorder and comorbid disorders with more severe impairment
(Platt et al., 2019). Schizophrenia spectrum disorders have been found to be three times more prevalent than in the
general population (Aman et al., 2016). Among individuals with autism spectrum disorder, approximately 33% have
ID (Manner et al., 2020). These comorbid mental disorders persist into adulthood and old age.
1.1.3 | Epidemiology of down syndrome
The prevalence for Down syndrome in the United States is estimated to be 0.07% (de Graaf et al., 2017). During
2010–2014 Down syndrome accounted for about 15.74 per 10,000 births (Mai et al., 2019). The Global Burden of
Disease study for the United States estimates for the prevalence of Down syndrome is 0.04% (Institute for Health
Metrics and Evaluation, 2019). Prevalence rate estimates vary by source due to varying estimates of mortality and
sources used for births. The life expectancy in the Down syndrome population has increased; however, persons
with Down syndrome have markedly higher mortality rate compared to the general population as they age pre-
maturely and die about 28 years earlier (O’Leary et al., 2018). The rate of comorbid mental disorders is lower in
adults with Down syndrome compared to those with ID due to other etiologies. In one study, DSM‐IV‐TR criteria
point prevalence was 10.8% with a 2‐year incidence rate of 3.7% among persons with Down syndrome (Mantry
et al., 2008).
1.1.4 | Challenging behavioral problems
Challenging behavioral problems may be associated with four explanatory models that are not mutually exclusive
(Cohen‐Mansfield, 2003). The direct impact model suggests that the pathophysiological changes to the brain may
directly result in behavioral problems, also known as behavioral phenotypes. (2) The unmet needs model suggest
HAUSER and KOHN
- 3

4. that behavioral problems occur due to the decreased ability to satisfy one's physical, emotional, environmental and
social needs due to deficits in communication. (3) The behavioral model suggests that antecedents and consequence
control behavioral problems are learned through reinforcement. (4) The environmental vulnerability model sug-
gests that there is a lower threshold at which stimuli affect a behavioral overreaction. Challenging behaviors are the
product of the interactions between psycho‐social vulnerabilities such as negative life events, lack of communi-
cation skills, impoverished social networks, lack of meaningful activities, and psychiatric problems; biological vul-
nerabilities such as health, sensory, and genetic factors; maintaining processes such as environmental responses,
and internal reinforcement; and impact factors such as quality of life, exclusion from community, and harm to self or
others (Bowring et al., 2019).
Behavioral problems may be triggered by transitional issues such as change of residence, in particular leaving
home, or another familiar living situation; interpersonal losses such as a parent or caregiver or loss of employment
through layoff or retirement; environmental factors including overcrowding, reduced privacy, and lack of stimulus;
unfamiliar or insensitive caregivers; provocation by other individuals in congregate settings; physical or sexual
abuse; stigma; and illness (Hauser & Kohn, 2021). Frustration due to inability to communicate, lack of choice over
residence, and realization of deficits may lead to behavioral problems. Illness and disability with aging may lead to
behavioral problems resulting from an undiagnosed underlying medical problem, acute illness, chronic medical
illness, sensory deficits, difficulty ambulating, and chronic psychiatric disorders including dementia.
The prevalence of challenging behaviors including self‐injury and aggression ranges from 10% to 20% (Davies &
Oliver, 2013). Aggression is a risk for contact with the criminal justice system, although individuals with ID are
often diverted to emergency psychiatric evaluation.
The rate of suicide among individuals with ID appears to be lower than that in the general population. Methods
include jumping off heights or running into traffic (Dodd et al., 2016). Women have one‐third the suicide rate of
men. The incidence of suicidal behavior and self‐harm is high and among adolescents with ID and comorbid psy-
chiatric diagnoses rates range from 20% to 42%. Suicide occurs more frequently among those with mild impairment
(Luiselli et al., 2008). Self‐injurious behavior may be a symptom indicative of depression in severe ID (Eaton
et al., 2021). Chronic thoughts of suicide may occur in as many as a third of adults with borderline to moderate ID
(Dodd et al., 2016).
1.1.5 | Major neurocognitive disorders
Major neurocognitive disorder, commonly known as dementia, often presents differently in individuals with ID and
varies depending on the nature and severity of the ID. Difficulties in making a diagnosis of neurocognitive disorder
include the quality of the informant reports, sensory impairment, and difficulty in assessment of those with
moderate or severe ID (Strydom, Chan, Fenton, et al., 2013). A general deterioration occurs prior to emotional or
behavioral changes (Strydom et al., 2007). Diagnostic neuroimaging may be of limited value due to preexisting
abnormalities. Individuals with ID over age sixty, excluding those with Down syndrome, have a five‐time higher risk
of developing dementia than the general population (Strydom, Chan, King, et al., 2013).
1.1.6 | Major neurocognitive disorders in down syndrome
Individuals with Down syndrome are at high risk for developing neurocognitive disorder at an early age. They are
the largest group of people with dementia under the age of 50, with a mean age of diagnosis being 55. Mortality is
typically between age 40 and 61. Approximately, 16% of individuals with Down syndrome have an Alzheimer's
disease‐like pattern (Ballard et al., 2016; Iulita et al., 2022; Sheehan et al., 2014). Behavioral changes in an indi-
vidual with Down syndrome and neurocognitive disorder may first present with frontal lobe dysfunction before
4
- HAUSER and KOHN

5. changes in language ability or memory are noted. The behavioral changes coincide with the stage of the neuro-
cognitive disorder and not necessarily premorbid intellectual functioning (Urv et al., 2010). In addition to neuro-
cognitive disorder, individuals with Down syndrome are at increased risk for depression, in contrast to other groups
with ID (Dykens, 2007) and accelerated aging in other body systems (Zigman, 2013).
1.2 | Criminal victimization
Individuals with a disability from age 12 and older are at increased risk of criminal victimization; however, those
with cognitive disorders are at the highest risk, including those with ID (Bureau of Justice, 2017). One study found
that over 25% of children with ID had been maltreated due to physical abuse, sexual abuse, or neglect (Sullivan &
Knutson, 2000). Females in particular are at higher risk for sexual assault, as are those with psychiatric comorbidity.
Those who transition out of the child welfare system who are older with more severe levels of ID are more likely to
be involved in transactional sex (Carrellas et al., 2021). Statistics on victimization are under‐reported. Individuals
with ID may be unable to report the crime, they may not realize that the victimization is a crime, may think that how
they are being treated is normal, and may view the perpetrator as a friend. Individuals with sexual and violent
offending have a higher rate of having been victimized than offenders without ID (van der Put et al., 2014).
Children and adolescents with ID who have been sexually abused have been found to have increased conduct
disorder, self‐injury, and sexualized behavior (Smit et al., 2019). Increased anxiety and depressive symptoms have
been noted in sexually abused adults with ID. The presentation of symptoms may be consistent with post‐traumatic
stress disorder (Rittmansberger et al., 2019).
There is a misperception that individuals with ID cannot serve as a witness as their deficits may preclude
accurate testimony. In fact, they can often relate accurate accounts of events they have witnessed (Ericson &
Isaacs, 2003). The ADA protects the access to the legal system for individuals with disabilities, which is one of the
conditions specifically identified (Public Law 101‐336, 1990). No mental qualifications for testifying as a witness are
specified for criminal cases based on the Federal Rule of Evidence 601 (Public Law 93–595, 2020). When inter-
viewing individuals with ID in a forensic setting, beginning with open‐ended questions may maximize accurate
recall. Subsequently, proceed to more specific questions with clear simple vocabulary as needed (Cederborg &
Lamb, 2008), as more focused questions decreases recall accuracy. Some of the difficulties encountered in obtaining
testimony, especially in children with ID include overcoming outside influences to disclose facts, inability to provide
supporting detail, and being unable to report some of the facts accurately. There are potential testimonial issues for
which the court may allow accommodation if brought to their attention. Accommodations may include not having
the defendant present in the courtroom to avoid changes in testimony due to feelings of intimidation, instructions
on direct and cross‐examination to avoid contamination from leading questions due to eagerness to please and
willingness to acquiesce, and the need for a cognitive interpreter.
1.3 | Criminal justice system
Individuals with ID are disadvantaged, and their rights are placed at risk at each stage of the judicial process from
contact with police, interrogation, criminal court proceedings and trial, and sentencing. There are multiple reasons
that individuals with ID are at a higher risk of being disadvantaged in the criminal justice systems (Davis, 2009;
Petersilia, 2000). Individuals may be at increased risk of arrest due to ID and related deficits in adaptive functioning.
Some individuals with ID may make no attempt to disguise what they did. When questioned by police, they may not
understand or may waive their rights or pretend to understand. Frequently, there is an unquestionable trust of
authority figures, feeling of intimidation, and a belief that police are protecting them rather than perceive the
adversarial relationship (Tazi & Rogers, 2023). The Miranda warning may be too complex to understand, and the
HAUSER and KOHN
- 5

6. individual may talk to police even before a lawyer is present (Supreme Court United States, 1966). The individual
may say they understand the warning without actual comprehension (Tazi & Rogers, 2023). Although an individual
with ID may waive their Miranda rights, there is uncertainty about whether they were competent to do so.
On interrogation, there is an increased risk of suggestibility, the possibility of giving socially desirable answers
to please others and being coerced into confessing or making false confessions. There may be a sense of confusion
as to who is responsible for the crime. In addition, questions may not be fully understood and there may be no
acknowledgment that there is not a full comprehension of what is being asked. Even commands and instructions
may not be fully comprehended. Table 2 provides a summary of communication barriers (Gulati, et al., 2021). In
working with their lawyer, individuals with ID may be less able to assist in their defense and have more difficulty
describing facts or details of the alleged offense. At times, their disability may go unrecognized, as the individual
may not want to disclose or may even try to cover up.
1.3.1 | Juvenile justice system
Youths with ID are over‐represented in the juvenile justice system compared to those without a developmental
disability. A national survey of heads of state department of juvenile corrections that participated self‐reported
that 33.4% of the juveniles had disability, of which 9.7% were classified with ID (Quinn et al., 2005). There is a
possible link between intellectual functioning and delinquency. IQ is not necessarily predictive of delinquent
behavior, but rather youths with low IQ exhibit behaviors that make them more likely to be labeled as delinquent.
The association between low IQ and delinquency may be related to impairments in language (La Vigne &
Rybroek, 2011), abstract reasoning, and social control. Youths with ID in the juvenile justice system exhibit be-
haviors, such as short attention span, hyperactivity, impulsivity, and low social skills. In addition, they are more
likely to enter the juvenile detention or the juvenile justice system due to school failure, being more susceptible to
delinquent behavior, having less developed problem solving strategies, and differential treatment by law
enforcement (Thompson & Morris, 2016).
1.3.2 | Participation in the adjudicative process and competency
Having ID does not preclude one from having competence to stand trial. To participate as a defendant in the
criminal justice system, following the US Supreme Court decision Dusky v. United States (1960), defendants must
possess the requisite ability and knowledge to meaningfully participate in the process, must possess a factual and
T A B L E 2 Barriers to communication disorders.
Effects of ID on understanding, communication and interactions Vulnerable to suggestion
Capacity to understand
Recognizing additional vulnerabilities
Communication challenges
Awareness of process
Poor coping skills
Law enforcements response to an individual with ID Lack of training on ID and related issues
Discrimination toward persons with ID
Limited recognition of need for additional support
Note: Adapted from Gulati et al., 2021.
6
- HAUSER and KOHN

7. rational understanding of the proceedings against them, and have the capacity to consult with the counsel in their
defense. Being under guardianship does not mean one is incompetent in all domains and may still be competent in
the adjudicative process.
Those with ID constitute approximately 6.5% of defendants found incompetent to stand trial (Warren
et al., 2006). Some of the deficits among those incompetent to stand trial can be addressed with reasonable ac-
commodation (Wood et al., 2019). One such accommodation is the use of a cognitive interpreter or supported
decision‐making, usually a friend or family member who can “translate” complex questions into words and a form
that is understood by the individual with a cognitive disability. Other accommodations include speaking slowly with
frequent repetition, providing periodic breaks, presenting information in a concrete stepwise manner, testimony
using videotape or videoconferencing, modified court schedules, alternative seating arrangement, and presence of
a support person or support animal. Others inappropriately may be found incompetent to stand trial due to the
inadequacy of formal assessment methods. Instruments that are specifically used to evaluate competency to stand
trial in ID have been developed, such as the Competence Assessment for Standing Trial for Defendants with
Mental Retardation (CAST‐MR) (Wood, et al., 2022). Those found incompetent to stand trial are frequently
committed to inpatient psychiatric hospitals for restorative treatment where treatment needs may not be able to
be met and treatment frequently is unsuccessful in part due to inadequacy of services rather than limited
effectiveness. Competence to stand trial may be improved up to 61%, such as with the Slater Method (Wall &
Christopher, 2012).
During the evaluation of competence, the issue of malingering arises. Individuals who have ID at times may be
misidentified as malingers since instruments that measure malingering may not work in this population (Salekin &
Doane, 2009). Obtaining collateral data and understanding the timeline of the developmental progression may be
most useful, including attention to prior adaptive functioning. However, cases of ID that have previously gone
undiagnosed may be uncovered during evaluation. Ultimately, determination of malingering in ID cases is based on
clinical decision‐making.
1.3.3 | Criminal responsibility
International studies suggest that individuals with ID may be at increased risk of perpetrating specific crimes, such
as violent crimes, in particular sexual crimes, but not in the overall rate of criminal charges compared the non‐ID
population (Edberg et al., 2022; Latvala et al., 2023). Nonviolent, nonsexual crimes are more prevalent among those
without ID (Fogden et al., 2016). Those with comorbid psychiatric disorder compared to those without mental
illness are more likely to be charged with a crime (Thomas et al., 2019). The increased rates of sexual offenses by
people with ID may be in part due to increased vulnerabilities associated with the ID, such as impaired judgment or
lack of adaptive abilities, or the risk factors potentially associated with the lifestyle of an individual with ID,
including poverty, clustered living, lack of education, and prior abusive experiences including having themselves
been sexually abused (Griffiths & Fedoroff, 2014).
Among the prison population, there is an overrepresentation of individuals with ID, comprising 4%–10% of the
prison population (Muñoz García‐Largo et al., 2020; Petersilia, 2000). Most individuals with ID involved with the
justice system have mild impairment. Rates of conviction and incarceration are higher for those without ID, and
their sentences are longer. They are more likely to experience physical violence, sexual assault, theft, and
manipulation by other prisoners. They are more likely to be denied due process in prison disciplinary, grievance, and
other administrative proceedings, and are historically denied equal access to good time credits and prison services,
including medical and mental health care. In Clark v California (United States, 1997) the court mandated that
California should provide accommodations for individuals with developmental disabilities to be safe and be able to
participate in meaningful facility activities.
HAUSER and KOHN
- 7

8. The Rehabilitation Act (Public Law 93‐112, 1973) and the Americans with Disabilities Act (ADA, Public Law
101‐33, 1990) require that prison and jail officials avoid discrimination, individually accommodate disability,
maximize integration of prisoners with disabilities with respect to programs, service, and activities, and provide
reasonable treatment for serious medical and mental‐health conditions (Schlanger, 2017). The exception to the
ADA is if a prisoner’s participation poses significant safety risks that cannot be mitigated, undue financial and
administrative burdens, or require a fundamental alteration in the nature of the program. In addition, some courts
allow discriminatory practices against disabled prisoners as long as the discriminatory policies serve legitimate
penological interests (ACLU National Prison Project, 2005). These exceptions may contribute to individuals with ID
to frequently not receive the needed supports and services in prison (Spreat, 2020).
1.3.4 | Sentencing
Individuals with ID are at increased risk to remain in pretrial incarceration. Bail is less accessible as they may lack funds
to pay bail and their living situation might be unstable (Petersilia, 1997). The individuals with ID are disadvantaged at
sentencing and are less likely to be able to competently plea bargain. Some individuals place themselves at increased
risk by having provided incriminating evidence. Their testimony may be viewed as less reliable. Those with ID who are
incarcerated may have more difficulty obtaining parole than other inmates. Due to the lack of accommodation, they
may have a poor record of program participation. Once eligible for parole they may have an inability to impress the
parole boards on interview. Once released, individuals with ID often have problems meeting parole requirements and
find it more difficult than the average inmate to get a job (Petersilia, 1997).
1.3.5 | Death penalty
In Atkins v. Virginia (2002), the United States Supreme Court ruled that individuals with ID cannot be sentenced to
death. Approximately, 7% of inmates sentenced to death raise an Atkins claim (Blume et al., 2009). The Supreme
Court concluded that maintaining the death penalty for individuals with ID does not serve the interest of retri-
bution or deterrence. In addition to the reduced capacity of the offender with ID, secondary justifications for not
imposing the death penalty were provided: increased risk of false confessions; difficulty in communicating with
counsel; decreased ability to effectively testify on their own behalf; and as a group they are at increased risk for
wrongful execution. In addition, their demeanor may create an unwarranted impression of lack of remorse,
increasing the likelihood that a jury may view them as more likely to pose a future danger.
There is no federal standard on how to define ID. However, the court held in Hall v. Florida that states must
follow current medical standards and that in testing standard errors of measurement need to be considered
(Steele & Orth, 2021). Although the Supreme Court does not require that DSM‐5 be followed, in Moore v.
Texas (2017) they defined the current medical manuals as the medical standard or the determination of ID but left it
to the states to determine if the criteria were consistent with medical consensus. Subsequently, in Moore v.
Texas (2019), the inclusion of adaptive deficits reported outside of prison needed to be considered in capital cases.
The procedures used to determine the burden of proof whether someone meets criteria for ID varies by state
(Goldstein, 2022). Most states require that the ineligibility for the death penalty is based on the preponderance of
evidence that it is more likely than not that the individual has ID, but some states may have additional re-
quirements. The determination, depending on the state, is either made by a judge or jury. Jurors are less likely to
consider an individual who committed a capital crime to have ID, possibly due to more stereotypical views or
misperceptions of their abilities, especially for those at the upper end of the ID spectrum (Blume & Salekin, 2015).
Jurors may believe mistakenly that an individual who can read, work in any capacity, drive a car, or parent a child
cannot have ID.
8
- HAUSER and KOHN

9. 1.4 | Civil legal issues
1.4.1 | Decision‐making capacity
Citizens are presumed to be competent unless adjudicated incompetent. Individuals with ID traditionally have been
excluded from health care decision‐making, as they are presumed incapable of making informed decisions.
Healthcare providers often assume a lack of decision‐making capacity, even when it may exist, and are reluctant to
proceed with treatment or withhold it without a legal determination of competency (Flower, 1994). Advance di-
rectives signed by an individual with ID are not necessarily honored by hospitals despite their health care provider
having considered them competent to make the decision at the time of signing (Botsford & King, 2005).
Sexual autonomy involves legal and ethical considerations. Capacity to make all decisions is fluid, including
sexuality‐related decisions (McGuire & Bayley, 2011). The ability to consent to sexual activity includes rationality,
knowledge, and voluntariness. Those with ID have less sexual knowledge and may have less awareness of abusive
situations (Murphy & O’Callaghan, 2004). What constitutes consent by individuals with ID varies by state statute
based on six different standards of consent: (1) morality standard; (2) nature and/or the consequence test, (3)
totality of the circumstances test, (4) nature of the conduct test, (5) the judgment test, and (6) evidence of disability
where there is no standardized test and determination is up to the court (Linder, 2018). Individuals living in group
homes may encounter organizational barriers toward expressing sexuality, such as privacy and strict regulations
and staff and parents who may have conflicted views toward their sexuality (Charitou et al., 2021). Sexual isolation
of group home residents may possibly violate Title II of the ADA (Chin, 2018) based on Olmstead v. L.C. (1999).
Agencies with a duty of care for the individual with ID may be at risk of liability for sexual behavior or coercion that
occurs under their watch.
The US Supreme Court case of Buck v. Bell (1927) legitimized involuntary sterilization. Eighteen states still
allow sterilization of individuals with mental or developmental disabilities as part of necessary sexual and repro-
ductive health care (Griffin, 2018). The best interest approach was outlined in the Supreme Court of New Jersey
decision In The Matter of Grady (1981). The court decision lists factors to be considered in the appropriateness of
sterilization.
Individuals with ID have the right to marriage, but courts may question the capacity to enter a marriage
contract. When two people with a disability marry, only one of them is eligible for Social Security Insurance (SSI)
and their combined income is used to determine benefits (Title XVI of the Social Security Act, Public Law 115‐
165, 2018), acting as a barrier to marriage as they would lose funding for needed services. Parents with ID
compared to non‐disabled parents are overrepresented in childcare proceedings, receive less support in parenting,
are at greater risk to have parental rights terminated in similar cases, more likely to have their children removed,
have stricter standards placed on them, be disadvantaged in child protection and court process by rules of evidence
and procedure, and less likely to receive support to correct conditions to prevent termination (Kandel et al., 2005).
In thirty‐two states, developmental disability can be one of the grounds for termination of parental rights.
A diagnosis of ID does not preclude having testamentary capacity, the ability to make a valid will. Having a
guardian may not necessarily preclude testamentary capacity if burden of proof is provided for this capacity, as one
may lack capacity in one domain but not another. To protect the will from challenge it is necessary to document
that the will‐maker had testamentary capacity and knew and approved of the contents of the will without undue
influence (Kenepp et al., 2021). The expert witness should justify the basis for testamentary capacity and include
details of the evaluation. If the individual cannot read, a statement should be included prior to the will being signed
that it was read to and approved by the will‐maker.
Financial capacity is an instrumental activity of daily living defined as the capacity to independently manage
one's finances consistent with personal self‐interest. Financial capacity ranges from basic monetary skill, such as
counting coins to complex skills such as exercising financial conceptual knowledge and investment decision‐making
(Nowrangi et al., 2019). A person‐centered approach to financial capacity could support autonomy while respecting
HAUSER and KOHN
- 9

10. an individual's values, choices, and preferences free of exploitation (Lichtenberg et al., 2015); such a model for
financial capacity could be used for those with ID. The Social Security administration to obtain SSI requires a valid
IQ test and discourages the use of validity tests for malingering (Chafetz, 2015). For individuals who cannot manage
their Social Security or SSI payments, participation in the Social Security's Representative Payment Program can
help provide benefit payment management.
Having a court‐appointed guardianship may be considered stigmatizing and undermining of human dignity, in
addition to being often over‐utilized or used inappropriately. In the view of legal rights advocates guardianship
strips the individual with ID of their legal personhood without sufficient evidence of decision‐making incapacity
(Dresser, 2022). Advocacy groups have challenged the present guardianship system by promoting increased au-
tonomy and proposing alternatives to guardianship and other forms of substituted judgment, such as supported
decision‐making for individuals with ID (Kohn & Blumenthal, 2014).
1.4.2 | Caregivers
In 2017, 72% of individuals with ID lived with a family caregiver, 18% lived alone or with a roommate, and 10%
lived in a supervised residential setting (Tanis et al., 2021). Aging caregivers have a declining ability to sustain their
role, which may result in individuals with ID having to leave their homes (Seltzer et al., 2011). Many families have
done little future planning and have no emergency plan in place (Steingass et al., 2011), such as not having
guardianship in place including a successor guardian (Heller & Kramer, 2009). Without earlier planning, adults with
ID may be placed in inappropriate institutional settings, and their new caregivers may not have adequate back-
ground information about the individual's likes, dislikes, aspirations, unique needs, and abilities (Davis, 2003; Hewitt
et al., 2010). In cases where the individual has decision‐making capacity, a durable power of attorney, health care
proxy, and advance directives may be more appropriate.
Appropriate estate planning and having a Special Needs Trust (SNT) and/or Better Life Experience savings
account (ABLE or 529A account) may financially help protect the individual with ID in the future (Kelly & Her-
shey, 2023). SNT and ABLE accounts are designed to supplement, not supplant, means‐tested government benefits
such as SSI and Medicaid for which the beneficiary may already be eligible or receiving. Therefore, disinheriting the
individual with ID is not necessary. Without a trust in place, transfer of property cannot be made legally where
there is no capacity to manage it; however, those with capacity have the same rights as any other beneficiary.
1.5 | Forensic psychiatry consultant
A forensic psychiatrist or neuropsychiatrist with clinical and forensic knowledge specific to ID may have a role
beyond that of an expert witness, as a consultant for both defendants and victims with ID. The evaluation,
assessment, and treatment are frequently complicated by the impairments inherent in an ID diagnosis. When
conducting an evaluation circumstances of the underlying condition and the acute presentation needs attention.
The usual approach to conducting an evaluation needs adaptation to fit the unique characteristics and circum-
stances of the individual with ID. Certain strategies can improve the likelihood of a successful evaluation, including
observation in natural settings, seeking information from collateral sources, taking steps to reduce the stress of the
evaluation, and involvement of familiar caregivers (Hauser et al., 2018).
A comprehensive cognitive assessment including IQ and evaluation of adaptive functioning with appropriate
validated instruments is necessary but may not be sufficient. For example, the forensic psychiatrist or neuropsy-
chiatrist may need to read between the lines of school records to extract the needed diagnosis (Weiss et al., 2004).
Co‐occurring comorbidity should also be investigated to determine if the defendant's condition is best explained by
a co‐occurring mental disorder, the ID, or the interaction of a comorbid mental disorder and ID. The forensic expert
10
- HAUSER and KOHN

11. witness may educate the court and juries that a comorbid mental disorder does not erase the static nature and
cognitive and adaptive deficits associated with ID, and about relevant etiological medical conditions. The consultant
may suggest involvement of other medical professionals such as pediatrics, neurology, and genetics.
In addition, the forensic consultant can help guide the legal team by providing education and assisting in
mediation, deposition, and trial preparation. The forensic consultant can help assist with witness credibility, provide
a better understanding of stereotypes that jurors may have about the defendant or witness with ID, and be able to
educate the jury about the individual's disability. The forensic consultant can assist in improving communication by
evaluating potential cognitive interpreters, as well as providing consultation regarding other potential accommo-
dations such as courtroom configuration, need for a closed courtroom, and adapting direct and cross‐examination.
2 | CONCLUSION
Individuals with ID deserve thorough consideration of their cognitive abilities and their adaptive functioning,
especially when they come to the attention of forensic psychiatrists or neuropsychiatrists. An awareness of the
special circumstances that face these individuals and complicate their assessment is necessary. The forensic psy-
chiatrist or neuropsychiatrist can assist the legal process in navigating the gray areas of uncertainty in the
assessment of various competencies and the issues of responsibility.
ACKNOWLEDGMENTS
None.
CONFLICT OF INTEREST STATEMENT
The authors have no conflict of interests.
REFERENCES
ACLU National Prison Project. (2005). Know your rights legal rights of disabled prisoners. Retrieved from https://www.aclu.
org/sites/default/files/images/asset_upload_file735_25737.pdf
Aman, H., Naeem, F., Farooq, S., & Ayub, M. (2016). Prevalence of non affective psychosis in intellectually disabled clients:
Systematic review and meta‐analysis. Psychiatric Genetics, 26(4), 145–155. https://doi.org/10.1097/YPG.
0000000000000137
American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). American Psychiatric
Association.
Anderson, L. L., Larson, S. A., MapelLentz, S., & Hall‐Lande, J. (2019). A systematic review of U.S. Studies on the prevalence
of intellectual or developmental disabilities since 2000. Intellectual and Developmental Disabilities, 57(5), 421–438.
https://doi.org/10.1352/1934‐9556‐57.5.421
Ballard, C., Mobley, W., Hardy, J., Williams, G., & Corbett, A. (2016). Dementia in Down's syndrome. The Lancet Neurology,
15(6), 622–636. https://doi.org/10.1016/S1474‐4422(16)00063‐6
Blume, J. H., Johnson, S. L., & Seeds, C. C. (2009). An empirical look at Atkins v. Virginia and its application in capital cases.
Tennessee Law Review, 76(3), 627–640. https://scholarship.law.cornell.edu/facpub/7
Blume, J. H., & Salekin, K. L. (2015). Analysis of Atkins cases. In E. A. Polloway (Ed.), The death penalty and intellectual disability
(pp. 37–52). American Association on Intellectual and Developmental Disabilities.
Botsford, A. L., & King, A. (2005). End‐of‐Life care policies for people with an intellectual disability: Issues and strategies.
Journal of Disability Policy Studies, 16(1), 22–30. https://doi.org/10.1177/10442073050160010401
Bowring, D. L., Painter, J., & Hastings, R. P. (2019). Prevalence of challenging behaviour in adults with intellectual dis-
abilities, correlates, and association with mental health. Current Developmental Disorders Reports, 6(4), 173–181.
https://doi.org/10.1007/s40474‐019‐00175‐9
Bureau of Justice Statistics. (2017). Crime against persons with disabilities, 2009‐ 2015 statistical tables. U.S. Department of
Justice. Retrieved from https://www.bjs.gov/content/pub/pdf/capd0913st.pdf
Carrellas, A., Resko, S. M., & Day, A. G. (2021). Sexual victimization and intellectual disabilities among child welfare involved
youth. Child Abuse and Neglect. https://doi.org/10.1016/j.chiabu.2021.104986
HAUSER and KOHN
- 11

12. Cederborg, A. C., & Lamb, M. (2008). Interviewing alleged victims with intellectual disabilities. Journal of Intellectual
Disability Research, 52(Pt 1), 49–58. https://doi.org/10.1111/j.1365‐2788.2007.00976.x
Chafetz, M. D. (2015). Intellectual disability: Civil and criminal forensic issues. Oxford University Press.
Charitou, M., Quayle, E., & Sutherland, A. (2021). Supporting adults with intellectual disabilities with relationships and sex:
A systematic review and thematic synthesis of qualitative research with staff. Sexuality and Disability, 39(1), 113–146.
https://doi.org/10.1007/s11195‐020‐09646‐z
Chin, N. M. (2018). Group homes as sex police and the role of the Olmstead integration mandate. N.Y.U. Review of Law &
Social Change, 42(3), 379–450. https://ssrn.com/abstract=3249755
Cohen‐Mansfield, J. (2003). Agitation in the elderly: Definitional and theoretical conceptualizations. In D. P. Hay, D. T. Klein,
L. K. Hay, G. T. Grossberg, & J. S. Kennedy (Eds.), Agitation in patients with dementia: A practical guide to diagnosis and
management (pp. 1–21). American Psychiatric Publishing.
Cooke, B. K., Delalot, D., & Werner, T. L. (2015). Hall v. Florida: Capital punishment, IQ, and persons with intellectual dis-
abilities. Journal of the American Academy of Psychiatry and the Law, 43(2), 230–234. https://jaapl.org/content/43/2/230
Cooper, S. A., Smiley, E., Morrison, J., Williamson, A., & Allan, L. (2007). Mental ill‐health in adults with intellectual dis-
abilities: Prevalence and associated factors. British Journal of Psychiatry, 190(1), 27–35. https://doi.org/10.1192/bjp.bp.
106.022483
Davies, L., & Oliver, C. (2013). The age related prevalence of aggression and self‐injury in persons with an intellectual
disability: A review. Research in Developmental Disabilities, 34(2), 764–775. https://doi.org/10.1016/j.ridd.2012.10.004
Davis, L. A. (2009). People with intellectual disability in the criminal justice system: Victims and suspects. The Arc. Retrieved from
https://thearc.org/wp‐content/uploads/forchapters/Criminal%20Justice%20System.pdf
Davis, S. (2003). A family handbook on future planning. The arc of the United States and rehabilitation research and training center
on aging with developmental disabilities. Department of Disability and Human Development, College of Applied Health
Sciences, University of Illinois at Chicago. Retrieved from https://www.wrightslaw.com/info/future.planning.arc.pdf
de Graaf, G., Buckley, F., & Skotko, B. G. (2017). Estimation of the number of people with Down syndrome in the United
States. Genetics in Medicine, 19(4), 439–447. https://doi.org/10.1038/gim.2016.127
Dodd, P., Doherty, A., & Guerin, S. (2016). A systematic review of suicidality in people with intellectual disabilities. Harvard
Review of Psychiatry, 24(3), 202–213. https://doi.org/10.1097/HRP.0000000000000095
Dresser, R. (2022). The UN challenge to guardianship and surrogate decision‐making. Hastings Center Report, 52(2), 4–6.
https://doi.org/10.1002/hast.1348
Dykens, E. M. (2007). Psychiatric and behavioral disorders in persons with Down syndrome. Mental Retardation and
Developmental Disabilities Research, 13(3), 272–278. https://doi.org/10.1002/mrdd.20159
Eaton, C., Tarver, J., Shirazi, A., Pearson, E., Walker, L., Bird, M., Oliver, C., & Waite, J. (2021). A systematic review of the
behaviours associated with depression in people with severe‐profound intellectual disability. Journal of Intellectual
Disability Research, 65(3), 211–229. https://doi.org/10.1111/jir.12807
Edberg, H., Chen, Q., Andiné, P., Larsson, H., & Hirvikoski, T. (2022). Crimes and sentences in individuals with intellectual
disability in a forensic psychiatric context: A register‐based study. Epidemiology and Psychiatric Sciences, 11(31), e2.
https://doi.org/10.1017/S2045796021000718
Ericson, K., & Isaacs, B. (2003). Eyewitness identification accuracy: A comparison of adults with and those without intel-
lectual disabilities. Mental Retardation, 41(3), 161–173. https://doi.org/10.1352/0047‐6765(2003)41<161:
EIAACO>2.0.CO;2
Flower, C. D. (1994). Legal guardianship: The implications for law, procedure, and policy for the lives of persons with devel-
opmental disabilities. In M. F. Hayden & B. H. Abery (Eds.), Challenges for a service system in transition (pp. 427–447).
Fogden, B. C., Thomas, S. D., Daffern, M., & Ogloff, J. R. (2016). Crime and victimisation in people with intellectual disability:
A case linkage study. BMC Psychiatry, 16(1), 170. https://doi.org/10.1186/s12888‐016‐0869‐7
Goldstein, A. R. (2022). Death and disability: The need for a federal standard. Nevada Law Journal, 23(1), 207–233.
Greenspan, S., & Woods, G. (2014). Intellectual disability as a disorder of reasoning and judgement: The gradual move away
from intelligence quotient‐ceilings. Current Opinion in Psychiatry, 27(2), 110–116. https://doi.org/10.1097/YCO.
0000000000000037
Griffin, D. (2018). Public health and sterilization of the mentally disabled: Under what circumstances should it be scruti-
nized versus granted by court order? Law school student scholarship. Retrieved from https://scholarship.shu.edu/
student_scholarship/938
Griffiths, D. M., & Fedoroff, P. (2014). Persons with intellectual disabilities and problematic sexual behaviors. Psychiatric
Clinics of North America, 37(2), 195–206. https://doi.org/10.1016/j.psc.2014.03.005
Gulati, G., Cusack, A., Bogue, J., O'Connor, A., Murphy, V., Whelan, D., Cullen, W., McGovern, C., Kelly, B. D., Fistein, E.,
Kilcommins, S., & Dunne, C. P. (2021). Challenges for people with intellectual disabilities in law enforcement in-
teractions in Ireland; thematic analysis informed by 1537 person‐years' experience. International Journal of Law and
Psychiatry, 75, 101683. https://doi.org/10.1016/j.ijlp.2021.101683
12
- HAUSER and KOHN

13. Hagan, L. D., & Guilmette, T. J. (2015). DSM‐5: Challenging diagnostic testimony. International Journal of Law and Psychiatry,
42–43, 128–134. https://doi.org/10.1016/j.ijlp.2015.08.017
Hauser, M. J., & Kohn, R. (2021). The psychiatric emergency care of the patient with intellectual disability. In R. L.
Glick, S. Zeller, & J. S. Berlin (Eds.), Emergency psychiatry: Principles and practice (2nd ed., pp. 392–402). Wolters
Kluwer.
Hauser, M. J., Kohn, R., Lerner, M. D., Stein, M., Lory, R., & Bursztajn, H. J. (2018). Intellectual disabilities, autism, and the
elderly: Medical‐legal issues. In J. C. Holzer, R. Kohn, P. R. Recupero, & J. M. Ellison (Eds.), Geriatric forensic psychiatry:
Principles and practice (pp. 265–274). Oxford University Press.
Hauser, M. J., Olson, E., & Drogin, E. Y. (2014). Psychiatric disorders in people with intellectual disability (intellectual
developmental disorder): Forensic aspects. Current Opinion in Psychiatry, 27(2), 117–121. https://doi.org/10.1097/
YCO.0000000000000036
Havercamp, S. M., & Scott, H. M. (2015). National health surveillance of adults with disabilities, adults with intellectual and
developmental disabilities, and adults with no disabilities. Disability and Health Journal, 8(2), 165–172. https://doi.org/
10.1016/j.dhjo.2014.11.002
Heller, T., & Kramer, J. (2009). Involvement of adult siblings of persons with developmental disabilities in future
planning. Journal of Intellectual and Developmental Disability, 47(3), 208–219. https://doi.org/10.1352/1934‐9556‐47.
3.208
Hewitt, A., Lightfoot, E., Bogenschutz, M., McCormick, K., Sedlezky, L., & Doljanac, R. (2010). Parental caregivers’ desires for
lifetime assistance planning for future supports for their children with intellectual and developmental disabilities.
Journal of Family Social Work, 13(5), 420–434. https://doi.org/10.1080/10522158.2010.514678
Institute of Health Metrics and Evaluation. (2019). Global burden of disease. University of Washington. Retrieved from
https://vizhub.healthdata.org/gbd‐compare/
Iulita, M. F., Garzón Chavez, D., Klitgaard Christensen, M., Valle Tamayo, N., Plana‐Ripoll, O., Sonja, A., Rasmussen, S. A.,
Marta Roqué Figuls, M., Alcolea, D., Videla, L., Barroeta, I., Benejam, B., Altuna, M., Padilla, C., Pegueroles, J., Fer-
nandez, S., Belbin, O., Carmona‐Iragui, M., Blesa, R., … Fortea, J. (2022). Association of Alzheimer disease with life
expectancy in people with Down syndrome. JAMA Network Open, 5(5), e2212910. https://doi.org/10.1001/
jamanetworkopen.2022.12910
Kandel, I., Morad, M., Vardi, G., & Merrick, J. (2005). Intellectual disability and parenthood. The Scientific World Journal,
21(5), 50–57. https://doi.org/10.1100/tsw.2005.12
Kelly, A. M., & Hershey, L. B. (2023). Coordinating an ABLE account and a special needs trust. Journal of Professional Service
Professionals, 76(1), 47–57.
Kenepp, A., Johnson, E., Lee, G. J., Sunderaraman, P., Denburg, N. L., & Nguyen, C. M. (2021). A comprehensive approach to
assessment of testamentary capacity. Frontiers in Psychology, 23(12), 789494. https://doi.org/10.3389/fpsyg.2021.
789494
Kohn, N. A., & Blumenthal, J. A. (2014). A critical assessment of supported decision‐making for persons aging with
intellectual disabilities. Disability and Health Journal, 7(1 Suppl), S40–S43. https://doi.org/10.1016/j.dhjo.2013.
03.005
Latvala, A., Tideman, M., Søndenaa, E., Larsson, H., Butwicka, A., Fazel, S., & Lichtenstein, P. (2023). Association of intel-
lectual disability with violent and sexual crime and victimization: A population‐based cohort study. Psychological
Medicine, 53(9), 3817–3825. https://doi.org/10.1017/S0033291722000460
La Vigne, M., & Rybroek, G. J. (2011). Breakdown in the language zone; the prevalence of language impairments among
juvenile and adult offenders and why it matters. UC Davis Journal of Juvenile Law & Policy, 15(1), 37–123. https://ssrn.
com/abstract=1663805
Lichtenberg, P. A., Stoltman, J., Ficker, L. J., Iris, M., & Mast, B. (2015). A person‐centered approach to financial capacity
assessment: Preliminary development of a new rating scale. Clinical Gerontology, 38(1), 49–67. https://doi.org/10.
1080/07317115.2014.970318
Linder, A. (2018). Capacity to consent to sexual activity among those with developmental disabilities. Stanford Law School.
Retrieved from https://law.stanford.edu/wp‐content/uploads/2018/11/Ann‐Linder‐Capacity‐to‐Consent‐to‐Sexual‐
Activity‐Among‐those‐with‐Developmental‐Disabilities.pdf
Luiselli, J. K.,McGee, C. M., Graham, M. J., Sperry,J.M., &Hauser, M. (2008). Suicidal behaviorand community support ofadults
with intellectual disability: Two case illustrations. Mental Health Aspects of Developmental Disabilities, 11(1), 26–30.
Maenner, M. J., Shaw, K. A., Baio, J., Washington, A., Patrick, M., DiRienzo, M., Christensen, D. L., Wiggins, L. D.,
Pettygrove, S., Andrews, J. G., Lopez, M., Hudson, A., Baroud, T., Schwenk, Y., White, T., Robinson Rosenberg, C.,
Lee, L. C., Harrington, R. A., Huston, M. H., Dietz, P. M. (2020). Prevalence of autism spectrum disorder among
children aged 8 years ‐ autism and Developmental Disabilities Monitoring Network, 11 sites, United States, 2016.
Morbidity and Mortality Weekly Report ‐ Surveillance Summaries, 69(4), 1–12. https://doi.org/10.15585/mmwr.
ss6904a1
HAUSER and KOHN
- 13

14. Mai, C. T., Isenburg, J. L., Canfield, M. A., Meyer, R. E., Correa, A., Alverson, C. J., Lupo, P. J., Riehle‐Colarusso, T., Cho, S. J.,
Aggarwal, D., & Kirby, R. S. (2019). National population‐based estimates for major birth defects, 2010–2014. Birth
Defects Research, 111(18), 1420–1435. https://doi.org/10.1002/bdr2.1589
Mantry, D., Cooper, S. A., Smiley, E., Morrison, J., Allan, L., Williamson, A., Finlayson, J., & Jackson, A. (2008). The prevalence
and incidence of mental ill‐health in adults with Down syndrome. Journal of Intellectual Disability Research, 52(Pt 2),
141–155. https://doi.org/10.1111/j.1365‐2788.2007.00985.x
McGuire, B. E., & Bayley, A. A. (2011). Relationships, sexuality and decision‐making capacity in people with an intellectual
disability. Current Opinion in Psychiatry, 24(5), 398–402. https://doi.org/10.1097/YCO.0b013e328349bbcb
Muñoz García‐Largo, L., Martí‐Agustí, G., Martin‐Fumadó, C., & Gómez‐Durán, E. L. (2020). Intellectual disability rates among
male prison inmates. International Journal of Law and Psychiatry, 70, 101566. https://doi.org/10.1016/j.ijlp.2020.101566
Murphy, G. H., & O'Callaghan, A. (2004). Capacity of adults with intellectual disabilities to consent to sexual relationships.
Psychological Medicine, 34(7), 1347–1357. https://doi.org/10.1017/s0033291704001941
Nowrangi, M. A., Sevinc, G., & Kamath, V. (2019). Synthetic review of financial capacity in cognitive disorders: Foundations,
interventions, and innovations. Current Geriatric Reports, 8(4), 257–264. https://doi.org/10.1007/s13670‐019‐
00304‐7
O’Leary, L., Hughes‐McCormack, L., Dunn, K., & Cooper, S.‐A. (2018). Early death and causes of death of people with Down
syndrome: A systematic review. Journal of Applied Research in Intellectual Disabilities, 31(5), 687–708. https://doi.org/
10.1111/jar.12446
Olley, J. G. (2013). Definition of intellectual disability in criminal court cases. Intellectual and Developmental Disabilities, 51(2),
117–121. https://doi.org/10.1352/1934‐9556‐51.2.117
Papazoglou, A., Jacobson, L. A., McCabe, M., Kaufmann, W., & Zabel, T. A. (2014). To ID or not to ID? Changes in classi-
fication rates of intellectual disability using DSM‐5. Intellectual and Developmental Disablities, 52(3), 165–174. https://
doi.org/10.1352/1934‐9556‐52.3.165
Patel, D. R., Cabral, M. D., Ho, A., & Merrick, J. (2020). A clinical primer on intellectual disability. Translational Pediatrics,
9(Suppl 1), S23–S35. https://doi.org/10.21037/tp.2020.02.02
Petersilia, J. (1997). Criminal justice policies toward the mentally retarded are unjust and a waste of money. RAND Corporation.
Retrieved from https://www.rand.org/pubs/research_briefs/RB4011.html
Petersilia, J. (2000). Doing justice the criminal justice system and offenders with developmental disabilities. California Policy
Research Center, University of California. Retrieved from http://files.eric.ed.gov/fulltext/ED465905.pdf
Platt, J. M., Keyes, K. M., McLaughlin, K. A., & Kaufman, A. S. (2019). Intellectual disability and mental disorders in a US
population representative sample of adolescents. Psychological Medicine, 49(6), 952–961. https://doi.org/10.1017/
S0033291718001605
Public Law 101‐336. (1990). Americans with disabilities Act of 1990.
Public Law 111‐256. (2010). 124 Stat. 2643, Rosa’s law.
Public Law 115‐165. (2018). 42 U.S. Code chapter 7, subchapter XVI social security act‐title XVI (supplemental security
income for the aged, blind, and disabled).
Public Law 93‐112. (1973). 87 stat. 394, 29 U.S. Code § 794, section 504 of the rehabilitation Act of 1973.
Public Law 93–595. (2020). §1, jan. 2, 1975, 88 stat. 1934; Apr. 26, 2011, eff. Dec. 1, 2011, federal rules of evidence rule
601. Competence to testify in general.
Quinn, M. M., Rutherford, R. B., Leone, P. E., Osher, D. M., & Poirier, J. M. (2005). Youth with disabilities in juvenile cor-
rections: A national survey. Council for Exceptional Children, 71(3), 339–345. https://doi.org/10.1177/
001440290507100308
Rittmannsberger, D., Kocman, A., Weber, G., & Lueger‐Schuster, B. (2019). Trauma exposure and post‐traumatic stress
disorder in people with intellectual disabilities: A Delphi expert rating. Journal of Applied Research in Intellectual Dis-
abilities, 32(3), 558–567. https://doi.org/10.1111/jar.12549
Salekin, K. L., & Doane, B. M. (2009). Malingering intellectual disability: The value of available measures and methods.
Applied Neuropsychology, 16(2), 105–113. https://doi.org/10.1080/09084280902864485
Schlanger, M. (2017). Prisoners with disabilities. In E. Luna (Ed.), Reforming criminal justice: Punishment, incarceration, and
release (Vol. 4, pp. 295–323). Academy for Justice.
Seltzer, M. M., Floyd, F., Song, J., Greenberg, J., & Hong, J. (2011). Midlife and aging parents of adults with intellectual and
developmental disabilities: Impacts of lifelong parenting. American Journal on Intellectual and Developmental Disabilities,
116(6), 479–499. https://doi.org/10.1352/1944‐7558‐116.6.479
Sheehan, R., Ali, A., & Hassiotis, A. (2014). Dementia in intellectual disability. Current Opinion in Psychiatry, 27(2), 143–148.
https://doi.org/10.1097/YCO.0000000000000032
Smiley, E., Cooper, S. A., Finlayson, J., Jackson, A., Allan, L., Mantry, D., McGrother, C., McConnachie, A., & Morrison, J.
(2007). Incidence and predictors of mental ill‐health in adults with intellectual disabilities: Prospective study. British
Journal of Psychiatry, 191(4), 313–319. https://doi.org/10.1192/bjp.bp.106.031104
14
- HAUSER and KOHN

15. Smit, M. J., Scheffers, M., Emck, C., van Busschbach, J. T., & Beek, P. J. (2019). Clinical characteristics of individuals with
intellectual disability who have experienced sexual abuse. An overview of the literature. Research in Developmental
Disabilities, 95(9929), 103513. https://doi.org/10.1016/j.ridd.2019.103513
Spreat, S. (2020). Persons with intellectual disability in prison. Journal of Intellectual Disabilities and Offending Behaviour,
11(4), 233–237. https://doi.org/10.1108/JIDOB‐03‐2020‐0006
Stankiewicz, E., Ouellette‐Kuntz, H., McIsaac, M., Shooshtari, S., & Balogh, R. (2018). Patterns of mortality among adults
with intellectual and developmental disabilities in Ontario. Canadian Journal of Public Health, 109(5–6), 866–872.
https://doi.org/10.17269/s41997‐018‐0124‐8
Steele, K. L., & Orth, S. (2021). The legacy of Atkins v. Virginia and its impact on Futson v. State. Journal of the American
Academy of Psychiatry and Law, 49(4), 601–609. https://doi.org/10.29158/JAAPL.210091‐21
Steingass, K. J., Chicoine, B., McGuire, D., & Roizen, N. J. (2011). Developmental disabilities grown up: Down syndrome.
Journal of Developmental and Behavioral Pediatrics, 32(7), 548–558. https://doi.org/10.1097/DBP.0b013e31822182e0
Strydom, A., Chan, T., Fenton, C., Jamieson‐Craig, R., Livingston, G., & Hassiotis, A. (2013). Validity of criteria for dementia
in older people with intellectual disability. American Journal of Geriatric Psychiatry, 21(3), 279–288. https://doi.org/10.
1016/j.jagp.2012.11.017
Strydom, A., Chan, T., King, M., Hassiotis, A., & Livingston, G. (2013). Incidence of dementia in older adults with intellectual
disabilities. Research in Developmental Disabilities, 34(6), 1881–1885. https://doi.org/10.1016/j.ridd.2013.02.021
Strydom, A., Livingston, G., King, M., & Hassiotis, A. (2007). Prevalence of dementia in intellectual disability using different
diagnostic criteria. British Journal of Psychiatry, 191(2), 150–157. https://doi.org/10.1192/bjp.bp.106.028845
Sullivan, P. M., & Knutson, J. F. (2000). Maltreatment and disabilities: A population‐based epidemiological study. Child
Abuse & Neglect, 24(10), 1257–1273. https://doi.org/10.1016/s0145‐2134(00)00190‐3
Supreme Court of New Jersey. (1981). In the matter of Lee Ann Grady. 85 N.J. 235; 85 N.J. 235. Argued September 8,
1980, Decided February 18, 1981.
Supreme Court of the United State. (1999). Olmstead, Commissioner, Georgia Department of Human Resources, et al. v. L.
C., by Zimring, Guardian ad Litem and Next Friend, et al. 527 U.S. 581. Argued April 21, 1999, Decided June 22, 1999.
Supreme Court of the United States. (1927). Buck v. Bell, 274 U.S. 200. Argued April 22, 1927, Decided May 2, 1927.
Supreme Court of the United States. (1960). Dusky v. United States, 362 U.S. 402. Decided April 18, 1960.
Supreme Court of the United States. (1966). Miranda v. Arizona, 384 U.S. 436. Decided June 13, 1966.
Supreme Court of the United States. (2002). Atkins v. Virginia, 536 U.S. 304. Argued February 20. 2002, Decided June 20,
2002.
Supreme Court of the United States. (2014). Hall v. Florida, 572 U.S. 701. Argued March 3, 2014, Decided May 27, 2014.
Supreme Court of the United States. (2017). Moore v. Texas, 137 S. Ct. 1039. Argued November 29, 2016, Decided March
28, 2017.
Supreme Court of the United States. (2019). Moore v. Texas, 139 S. Ct. 666. Decided February 19, 2019.
Tanis, E. S., Lulinski, A., Wu, J., Braddock, D., & Hemp, R. (2021). The state of the states in intellectual and developmental
disabilities, department of psychiatry. University of Colorado. Retrieved from www.stateofthestates.org
Tazi, K. Y., & Rogers, R. (2023). Falling through the cracks: Failing to identify compromised Miranda abilities for defendants
with limited cognitive capacities. Behavioral Sciences and the Law, 41(5), 326–342. https://doi.org/10.1002/bsl.2610
Thomas, S. D. M., Nixon, M., Ogloff, J. R. P., & Daffern, M. (2019). Crime and victimization among people with intellectual
disability with and without comorbid mental illness. Journal of Applied Research in Intellectual Disabilities, 32(5),
1088–1095. https://doi.org/10.1111/jar.12598
Thompson, K. C., & Morris, R. J. (2016). Juvenile delinquency and disability. Springer International Publishing.
Tuffrey‐Wijne, I. (2003). The palliative care needs of people with intellectual disabilities: A literature review. Palliative
Medicine, 17(1), 55–62. https://doi.org/10.1191/0269216303pm668oa
United States Court of Appeals for the Ninth Circuit. (1997). Clark v. State of California. 123 F.3d 1267.
Urv, T. K., Zigman, W. B., & Silverman, W. (2010). Psychiatric symptoms in adults with Down syndrome and Alzheimer's
disease. American Journal on Intellectual and Developmental Disabilities, 115(4), 265–276. https://doi.org/10.1352/
1944‐7558‐115.4.265
van der Put, C. E., Asscher, J. J., Wissink, I. B., & Stams, G. J. J. M. (2014). The relationship between maltreatment
victimization and sexual and violent offending: Differences between adolescent offenders with and without intel-
lectual disability. Journal of Intellectual Disability Research, 58(11), 979–991. https://doi.org/10.1111/jir.12031
Vissers, L. E., Gilissen, C., & Veltman, J. A. (2016). Genetic studies in intellectual disability and related disorders. Nature
Reviews Genetics, 17(1), 9–18. https://doi.org/10.1038/nrg3999
Wall, B. W., & Christopher, P. P. (2012). A training program for defendants with intellectual disabilities who are found
incompetent to stand trial. Journal of the American Academy of Psychiatry and Law, 40(3), 366–373. https://jaapl.org/
content/40/3/366
HAUSER and KOHN
- 15

16. Warren, J. I., Murrie, D. C., Stejskal, W., Colwell, L. H., Morris, J., Chauhan, P., & Dietz, P. (2006). Opinion formation in
evaluating the adjudicative competence and restorability of criminal defendants: A review of 8,000 evaluations.
Behavioral Sciences & the Law, 24(2), 113–132. https://doi.org/10.1002/bsl.699
Weiss, K. J., Haskins, B., & Hauser, M. J. (2004). Commentary: Atkins and clinical practice. Journal of the American Academy of
Psychiatry and Law, 32(3), 309–313. https://jaapl.org/content/32/3/309
Wood, M. E., Brown, K. P., Bitting, A. R., Slobogin, C., & Bowerman, B. (2022). Legal admissibility of the competence
assessment for standing trial for defendants with mental retardation (CAST‐MR). Journal of Personality Assessment,
104(2), 289–301. https://doi.org/10.1080/00223891.2021.1951742
Wood, M. E., Lawson, K. M., Anderson, J. L., Kinney, D. I., Nitch, S., & Glassmire, D. M. (2019). Reasonable accommodations
for meeting the unique needs of defendants with intellectual disability. Journal of the American Academy of Psychiatry
and Law, 47(3), 310–320. https://jaapl.org/content/early/2019/06/11/JAAPL.003855‐19
Zablotsky, B., Black, L. I., Maenner, M. J., Schieve, L. A., Danielson, M. L., Bitsko, R. H., Blumberg, S. J., Kogan, M. D., & Boyle,
C. A. (2019). Prevalence and trends of developmental disabilities among children in the United States: 2009‐2017.
Pediatrics, 144(4), e20190811. https://doi.org/10.1542/peds.2019‐0811
Zigman, W. B. (2013). Atypical aging in Down syndrome. Developmental Disabilities Research Reviews, 18(1), 51–67. https://
doi.org/10.1002/ddrr.1128
How to cite this article: Hauser, M. J., & Kohn, R. (2024). Forensic psychiatric issues in intellectual disability.
Behavioral Sciences & the Law, 1–16. https://doi.org/10.1002/bsl.2653
16
- HAUSER and KOHN