Victims of Crime Research Digest

Victims and Fetal Alcohol Spectrum Disorder (FASD):
A Review of the Issues

By Charlotte Fraser, Research Analyst, Research and Statistics Division, Department of Justice Canada

This article provides an overview of Fetal Alcohol Spectrum Disorder, commonly referred to as FASD, and a review of the issues as they pertain to the criminal justice system, and in particular, to victims of crime.

Fetal Alcohol Spectrum Disorder

Permanent central nervous system damage can occur to a fetus as a result of maternal alcohol consumption during pregnancy. The damage can affect an individual's physical makeup as well as cognitive and behavioural functioning. The degree to which prenatal exposure to alcohol damages the fetus depends on numerous factors including genetics, maternal characteristics, nutrition, environment, developmental timing, reactions to other drugs, and duration and extent of alcohol exposure. Based on these and other factors, individuals exposed to alcohol prenatally may be affected by one of the following medical diagnoses that underlie the term Fetal Alcohol Spectrum Disorder (FASD): Fetal Alcohol Syndrome (FAS), partial Fetal Alcohol Syndrome (pFAS) or Alcohol-Related Neurodevelopmental Disorder (ARND).

Individuals with FAS and pFAS display some evidence of pre- and/or post-natal growth deficits and evidence of craniofacial anomalies (small eye openings referred to as short palpebral fissure lengths, an absent or elongated groove between the upper lip and nose referred to as a smooth philtrum, and thin or flat upper lip). All individuals with FASD have central nervous system damage, which result in varying difficulties with intellect, academics, language, communication, memory, attention, executive functioning, and adaptive behaviour.

There are ten brain domains that can be affected as a result of maternal alcohol consumption during pregnancy (Chudley et al. 2005; Lang 2006). The type of central nervous system damage varies among those with FASD and not all brain domains may be affected. In terms of diagnosing FASD, individuals need to have impaired functioning in three of the ten brain domains; other brain domains may not be affected at all. This means, for example, that one person may have difficulties with memory while another person may not. Thus, it is important to recognize that not everyone with FASD will display all of the associated cognitive and behavioural characteristics of FASD. Examples of how the cognitive and behavioural characteristics of FASD apply to victims and/or witnesses are reviewed in Appendix A.

FASD is considered the leading cause of developmental disabilities and mental retardation world-wide (Journal of FAS International 2004; Roberts and Nanson 2000). While no national data exist on the incidence of FASD in Canada (Chudley et al. 2005), prevalence estimates from the general US population indicate that between 0.5-3 in 1,000 individuals have FAS and 1 in 100 have FASD (FAS, pFAS, ARND) (Abel 1995; Abel and Sokol 1987; Barr and Streissguth 2001; May and Gossage 2001). FASD is considered to be highly under-diagnosed in part because the disorder was only identified in the early 1970s and in part because diagnosis is difficult and not all physicians are trained in the area. Assessments are ideally conducted by a geneticist or paediatrician experienced with FASD in collaboration with a clinical psychologist, speech-language pathologist, and a school or social worker (Chudley et al. 2005). The availability of FASD assessments is lacking, and provincial health care plans do not cover the cost of an assessment, which is approximately $2,000. Both government and non-governmental reports on FASD have stressed the importance of increasing and supporting diagnostic services (Chudley et al. 2005; First Nations and Inuit Health Branch 1997; Roberts and Nanson 2000; Public Health Agency of Canada 2003).

FASD and the Criminal Justice System

The impact of FASD on the Canadian justice system has received considerable attention in recent years, but very little empirical evidence is available on the prevalence or outcomes for those with FASD. Evidence suggests that individuals with FASD are at high risk of coming into repeated contact with the criminal justice system both as victims and offenders (Boland et al. 1998; Boland et al. 2002; Chartrand and Forbes-Chilibeck 2003; Conry and Fast 2000; Fast et al. 1999; Fast and Conry 2004; Moore and Green 2004; Streissguth and Kanter 1997; Streissguth et al. 2004; Verbrugge 2003). The prevalence of FASD among a sample of adult male offenders entering a federal (serving two or more years) correctional facility in Manitoba was 10% (MacPherson and Chudley 2007). This was considered a conservative estimate as it is difficult to diagnose adults with FASD (Chudley et al. 2007). The prevalence of FASD among a sample of Saskatchewan youth remanded for psychiatric or psychological assessment was 23% (Fast et al. 1999). This incidence rate was considered high as the sample was not reflective of the general prison population (Boland et al. 2002). The lifetime prevalence of incarceration among a sample of individuals with FASD in the US was 32% for adolescents and 42% for adults (Streissguth and Kanter 1997).

Most research on FASD and the justice system has focused exclusively on the offender and there has been no empirical information collected on victims or witnesses who have FASD or victims of offenders who have FASD. There have, however, been court cases where the issue of victims with FASD has been addressed.[1] A review of Canadian and American[2] caselaw suggests there is no consistent approach in responding to, or accommodating, victims with FASD. As more diagnostic services become available and the justice system's awareness of FASD increases, it is likely that the issues surrounding victims with FASD and victims of offenders with FASD will become more pronounced in the future.

Victims of Crime

As with all disabilities, individuals with FASD are at high risk of being victims of crime. They are also vulnerable to being taken advantage of, especially by family members and friends, who may not always be looking out for their best interest. This becomes very difficult in cases of domestic abuse, where a partner may try to persuade a victim with FASD not to testify against him/her in court or to not report abuse to the police. Moreover, some victims with FASD may not realize that certain behaviours of others are wrong (e.g., sexual advances, touching). Victims with FASD may not fully understand what it means to be a victim of crime or the importance of testifying against the accused or completing a Victim Impact Statement. On the surface, victims with FASD may appear to understand the court process, but if probing was done on their comprehension of the various issues, it would become evident that many do not understand the purpose and outcomes of the court process.

Given the suspected high proportion of offenders with FASD, it is likely that some victims (with or without FASD) may come in contact with offenders who have FASD. It is important that victims are aware of the complex behavioural patterns of individuals with FASD, not to condone the offender's behaviours but in a larger context of being able to begin the healing process.

Issues for consideration

The impact of FASD on the justice system is beginning to be addressed by governments, non-governmental agencies, and advocates. More awareness and training on the prevalence and characteristics of individuals with FASD in the justice system and on appropriate responses is needed. Future research on FASD and the justice system should address issues pertaining to victims and witnesses in terms of experiences and challenges, as well as suggestions for improving the communication process for victims with FASD. These issues need to be addressed to ensure that victims are able to access the justice system in a fair and consistent manner.

Future research

Given that there is no consistent approach in responding to victims or witnesses with FASD, the Research and Statistics Division, on behalf of the Policy Centre for Victims Issues, Department of Justice Canada, are conducting a research study on the experiences of Victim Services workers with victims and witnesses who have or may have FASD. This research is providing the first empirical assessment of strategies and approaches used by service providers who have knowledge and experience working with victims or witnesses who have FASD (diagnosed and/or suspected). Victim Services Workers are also being asked to provide suggestions on methods or strategies that could help them better prepare and respond to clients who have FASD. Results from this research will generate further areas to address, such as developing a manual that will assist Victim Service providers in their knowledge and approaches for working with clients who have FASD.

Appendix A: Examples of how the cognitive and behavioural characteristics of FASD apply to victims and/or witnesses

Intellect

  • Do not learn from previous experiences
  • Difficulty generalizing from one event to another event
  • Difficulty understanding legal terminology
  • Confused by sarcasm or abstract examples provided by Crown or defence

Academic Achievement

  • Adults with academic achievement levels of school aged children
  • Writing skills are poorly developed, making it difficult to complete a Victim Impact Statement
  • Difficulty in articulating thoughts and may not write out what they mean to say

Attention

  • Restless (difficulty sitting still, agitated)
  • Distracted by others entering and leaving the court room
  • Unable to focus and concentrate on the questions being asked by the Crown
  • Easily frustrated or overwhelmed in courtroom setting

Memory

  • Impaired storage and retrieval system for both short and long-term memory
  • Forgetful of the time of day; missed court appearances
  • Difficulty recollecting events as they occurred
  • Unsure of time frames or duration of events
  • Confabulation, unknowingly adding in false statements when trying to recollect events

Executive Function

  • Planning ahead; forethought; unknowingly putting themselves in risk situations (e.g., not realizing that telling people and walking around with large amounts of cash may put them at risk of being mugged)
  • Problem solving (acting on impulse instead of thinking things through)
  • Knowing when they are being taken advantage of
  • Understanding consequences of actions; implications of testifying against partner or common-law spouse (e.g., not realizing they could go to jail)

Adaptive Behaviour

  • Daily living skills; knowing how to use a bus or take a cab to get to court
  • Self-care; dressing appropriately and professionally for court appearances
  • Community functioning; knowing where and how to apply for services such as legal aid or knowing that Victim Services is available to them
  • Standing up and speaking during court proceedings instead of allowing defense council to speak on their behalf

Language

  • Unable to articulate thoughts effectively while on the witness stand
  • Using words or phrases in the wrong way that may confuse or provide a different message to listeners
  • Speech difficulties

Social Communication

  • Going along with whatever argument the Crown or police is making in order to please them
  • Easily agreeing to leading questions from Crown or police
  • Shy or not responding to questions when asked
  • Social cues (knowing when to stop talking, providing too much personal information)

Neurologic Hard or Soft Signs (regulatory systems)

  • Fine (drawing, writing) and gross (balance, walking) motor skills
  • Hand/eye coordination
  • Difficulty typing or writing by hand clearly

References

  • Abel, E. L. 1995. An update on incidence of Fetal Alcohol Syndrome: FAS is not an equal opportunity birth defect. Neurotoxicology & Teratology 17(4): 437-443.
  • Abel, E. L., and R. S. Sokol. 1987. Incidence of Fetal Alcohol Syndrome and economic impact of FAS-related anomalies. Drug and Alcohol Dependence 19:51-70.
  • Barr, H. M., and A. P. Streissguth. 2001. Identifying maternal self-reported alcohol use associated with Fetal Alcohol Spectrum Disorder. Alcoholism: Clinical & Experimental Research 25(2): 283-287.
  • Boland, F. J., R. Burrill, M. Duwyn, and J. Karp. 1998. Fetal Alcohol Syndrome: Implications for Correctional Service. (Research Branch). Ottawa: Correctional Service Canada. Accessed November 20, 2007, from http://www.csc-scc.gc.ca/text/rsrch/reports/r71/r71e_e.shtml.
  • Boland, F. J., A. E. Chudley, and B. A. Grant. 2002. The challenge of Fetal Alcohol Syndrome in adult offender populations. Forum on Corrections Research 14(3). Accessed November 20, 2007, from http://www.csc-scc.gc.ca/text/pblct/forum/e143/143s_e.pdf.
  • Chartrand, L. N., and E. M. Forbes-Chilibeck. 2003. The sentencing of offenders with Fetal Alcohol Syndrome. Health Law Journal 11:35-91.
  • Chudley, A. E., J. Conry, J. L. Cook, C. Loock, T. Rosales, and N. LeBlanc. 2005. Fetal Alcohol Spectrum Disorder: Canadian guidelines for diagnosis. Canadian Medical Association Journal 172 (supplement 5): s1-s21.
  • Chudley, A. E., A. R. Kilgour, M. Cranston, and H. Edwards. 2007. Challenges of diagnosis in Fetal Alcohol Syndrome and Fetal Alcohol Spectrum Disorder in the adult. American Journal of Medical Genetics Part C (Seminars in Medical Genetics) 145C:261-262.
  • Conry, J., and D. K. Fast. 2000. Fetal Alcohol Syndrome and the criminal justice system. Vancouver: British Columbia Fetal Alcohol Syndrome Resource Society.
  • Fast, D. K., and J. Conry. 2004. The challenge of Fetal Alcohol Syndrome in the criminal justice system. Addiction Biology 9:161-166.
  • Fast, K. K., J. Conry, and C. A. Loock. 1999. Identifying Fetal Alcohol Syndrome among youth in the criminal justice system. Developmental & Behavioral Pediatrics 20(5): 370-372.
  • Fetal Alcohol and Drug Unit. 2003. FASD Legal Issues Resource Centre. Accessed November 20, 2007, from http://depts.washington.edu/fadu/.
  • Fetal Alcohol Spectrum Disorder Ontario Justice Committee. 2007. FASD and the justice system. Accessed November 20, 2007, from http://fasdjustice.on.ca/.
  • First Nations and Inuit Health Branch. 1997. It takes a community. Framework for the First Nations and Inuit Fetal Alcohol Syndrome/Fetal Alcohol Effects Initiative. Ottawa: Health Canada. Accessed November 20, 2007, from http://www.hc-sc.gc.ca/fnih-spni/alt_formats/fnihb-dgspni/pdf/pubs/preg-gros/2001_takes-prend-commun_e.pdf.
  • Journal of FAS International. 2004. Fetal Alcohol Spectrum Disorder and homelessness. Training Manual. Journal of FAS International 2(10): 1-107. Accessed November 20, 2007, from http://www.motherisk.org/JFAS_documents/FAS_Street_Level.pdf.
  • Lang, J. 2006. Ten brain domains: A proposal for functional central nervous system parameters for FASD diagnosis and follow-up. Journal of FAS International 4(12). Accessed November 20, 2007, from http://www.motherisk.org/JFAS_documents/JFAS_5012_Final_e12_6.28.6.pdf.
  • MacPherson, P., and A. E. Chudley. 2007. Fetal Alcohol Spectrum Disorder (FASD): Screening and estimating incidence in an adult correctional population. Presented at the 2nd International Conference on Fetal Alcohol Spectrum Disorder: Research, Policy, and Practice Around the World, Victoria, British Columbia.
  • May, P. A., and J. P. Gossage. 2001. New data on the epidemiology of adult drinking and substance use among American Indians of the northern states: Male and female data on prevalence, patterns and consequences. The Journal of the National Center 10(2): 1-26. Accessed November 20, 2007, from http://aianp.uchsc.edu/ncaianmhr/journal/pdf_files/10(2).pdf.
  • Moore, T. E., and M. Green. 2004. Fetal Alcohol Spectrum Disorder (FASD). A need for closer examination by the criminal justice system. Criminal Reports 19(1): 99-108. Accessed November 20, 2007, from http://www.acbr.com/fas/FASDCrimRep.pdf.
  • Roberts, G., and J. Nanson. 2000. Best practices. Fetal Alcohol Syndrome/Fetal Alcohol Effects and the effects of other substance use during pregnancy. Canada's Drug Strategy Division.Ottawa: Health Canada. Accessed November 20, 2007, from http://dsp-psd.communication.gc.ca/Collection/H49-156-1-2001E.pdf.
  • Public Health Agency of Canada. 2003. FASD. A framework for action. Ottawa: Public Health Agency of Canada. Accessed November 20, 2007, from http://www.phac-aspc.gc.ca/publicat/fasd-fw-etcaf-ca/pdf/fasd-fw_e.pdf.
  • Streissguth, A. P., F. L. Bookstein, H. M. Barr, P. D. Sampson, and K. O'Malley. 2004. Risk factors for adverse life outcomes in Fetal Alcohol Syndrome and Fetal Alcohol Effects. Developmental and Behavioral Pediatrics 25(4): 228-238.
  • Streissguth, A. P., and J. Kanter. 1997. The challenges of Fetal Alcohol Syndrome: Overcoming secondary disabilities. Seattle: University of Washington Press.
  • Verbrugge, P. 2003. Fetal Alcohol Spectrum Disorder and the youth criminal justice system. A discussion paper. Ottawa: Department of Justice Canada, Youth Justice Research. Accessed November 20, 2007, from /en/ps/rs/rep/2003/rr03yj-6/rr03yj-6.pdf.

  • [1]An excellent website developed by the FASD Ontario Justice Committee provides details of all case law that mentions FASD in Canada (Fetal Alcohol Spectrum Disorder Ontario Justice Committee 2007).
  • [2] U.S. case law mentioning FASD is available from the FASD Legal Issues Resource Centre (Fetal Alcohol and Drug Unit 2003).
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