Fetal Alcohol Spectrum Disorder and the Youth Criminal Justice System: A Discussion Paper
Legal issues related to Fetal Alcohol Spectrum Disorder (FASD) have been explored recently by a number of authors.  This discussion paper canvases issues specifically related to FASD and the youth criminal justice system. Where available, court decisions that have addressed these issues are reviewed. Issues are explored under six subject headings: (I) the FASD construct; (II) fitness to stand trial; (III) criminal intent; (IV) proportionality of youth court outcomes; (V) sentencing; and (VI) bridging with social services.
The association between maternal alcohol consumption and birth defects is a relatively recent discovery.  The term Fetal Alcohol Syndrome (FAS) was first introduced in 1973  in an article that described a pattern of craniofacial abnormality, growth deficiency, and central nervous system dysfunction within a small sample of children who were born to women who had chronically abused alcohol during gestation. These features have remained the core aspects of FAS.
Universal standards for diagnosing and labelling FAS have not emerged. There are currently several diagnostic systems in use. One of the most prominent systems was advanced by the American Institute of Medicine (IOM) . The IOM classification system sets out two broad categories of diagnoses: (a) Fetal Alcohol Syndrome (FAS) and (b) Alcohol-Related Effects.
There are three possible diagnoses under the FAS heading.  All of the diagnoses require that the distinctive facial features be present. The most conclusive diagnosis requires the presence of several factors: (a) documentation of maternal consumption of alcohol; (b) facial anomalies (e.g. short horizontal eye length, thin flat upper lip, flattened midface); (c) growth retardation; and (d) central nervous system developmental abnormalities. The latter criterion includes structural brain abnormalities, and neurological signs such as impaired fine motor skills, neurosensory hearing loss, poor tandem gait, and poor eye-hand coordination.
Alcohol Related Effects encompass two separate diagnoses: (a) Alcohol-Related Birth Defects (ARBD) and Alcohol-Related Neuro-Developmental Disorder (ARND). Both require confirmation of a history of maternal alcohol exposure, but neither requires the distinctive facial anomalies characteristic of FAS. ARBD applies to individuals who have congenital anomalies related to the heart, skeleton, kidneys, eyes, and ears. ARND applies where the patient is afflicted with the central nervous system developmental abnormalities noted above, or other cognitive and behavioural irregularities. The latter includes learning difficulties, poor academic performance, poor impulse control, problems in social perception, deficits in receptive and expressive language, poor capacity for abstraction or metacognition, deficits in mathematical skills, problems in memory, brief attention span, and poor judgment. 
In keeping with the lack of a universal diagnostic system for FAS, the terminology for the construct varies in the literature. For the purposes of this paper, Fetal Alcohol Spectrum Disorder (FASD), an umbrella term used to encompass all diagnostic categories associated with prenatal alcohol exposure, will be used. When discussing particular cases, however, the cited diagnosis will be retained.
The prevalence rate of FASD varies across cultures, and socio-economic strata.  May and Gossage, based on a literature review, estimated the prevalence of FAS within the general U.S. population to be between 0.5 and 2 per 1,000 births. In contrast, a study based in northern Manitoba, reported the incidence of FAS to be 7.2 per 1000 live births. The prevalence of FAS within the general youth justice population is not known. However, in a recent study of young Canadian forensic inpatients who had been remanded for a psychiatric assessment (n = 287), 1% met the criteria for FAS and 22.3% met the criteria for ARND.
The most pressing legal issues arise from the cognitive  and behavioural expressions of the disorder. To date, there has been little systematic study of the cognitive and behavioural deficits that are associated with FASD amongst adolescents. Much of the information regarding the cognitive and behavioural deficits associated with FASD is based upon anecdotes and descriptive studies. In this context Abel cautions: "the plural of anecdote is not data." 
Streissguth, and her colleagues at the University of Washington, are conducting an ongoing longitudinal study of primary and secondary disabilities associated with FASD. According to their terminology, primary disabilities reflect the cognitive deficits associated with FASD, whereas secondary disabilities represent behavioural problems that are mediated to a greater extent by social factors.
A recent report  described the prevalence of primary and secondary disabilities among individuals affected by FASD. Regarding primary deficits, within the sample of persons with FAS (n = 173) the mean IQ was 79; within the ARND sample (n = 295) the mean IQ was 90. Based on these numbers, an estimated 27% of the FAS sample would fall below two standard deviations from the average IQ; whereas only an estimated 9% of the ARND youth would fall below this cut-off.
The prevalence of secondary disabilities were reported: 90% had received treatment for mental health problems, 60% had disrupted school experiences, 60% had experienced trouble with the law, 50% had been confined involuntarily under civil or criminal law, 50% had displayed inappropriate sexual behaviours, and 30% had alcohol and drug problems. When interpreting the results of this study, it is inappropriate to attribute a causal relationship between FASD and these secondary disabilities. This is demonstrated by the fact that several confounded variables, which they described as protective factors, were identified. Protective factors, which attenuated secondary disabilities, included living in a stable nurturing home, early diagnoses, never having experienced abuse, being found eligible for social services, having a diagnosis of FAS rather than ARND, and not living in poverty.
The Washington group examined the co-morbidity between FASD and other mental disorders in greater depth.  A descriptive study of 25 adults with FASD found that 92% of the sample met the criteria for a clinical disorder according to the DSM-IV; diagnoses included alcohol or drug dependence (60%), major depressive disorder (44%), psychotic disorders (40%), bipolar I disorder (20%), anxiety disorders (20%), eating disorders (16%), and dysthymic disorder (4%). Relatively high prevalence rates of personality disorders were also found: avoidant personality disorder (6%), antisocial personality disorder (19%), and dependent personality disorder (14%). No diagnoses for intellectual impairment were reported because all individuals with an IQ of less than 70 were excluded from the sample at the outset; they reported, however, that 9% of the prospective sample met this criterion. Although these results indicate that mental health problems may be a significant issue for individuals with FASD, they should be tendered cautiously because of the absence of a comparison group, and the small sample size.
Overall, there is relatively little empirical information on the impact of FASD upon the youth criminal justice system. Much of what is known about the social and behavioural expressions of FASD can be attributed to the work of the Washington group. Given the current state of the literature, there is an opportunity to make a significant contribution to the knowledge base through promoting research on FASD. 
Important research questions include (a) the prevalence of FASD amongst youth in the criminal justice system (with special attention to gender differences), (b) the severity of cognitive deficits in relation to legal standards (e.g. what percentage of FASD accused are unfit to stand trial?), (c) the temporal stability of cognitive deficits from youth to adulthood, and (d) community treatment options and their relative effectiveness.
It is important to invest in sound research on FASD. The reliance on anecdotal information can lead to the formation of stereotypes. It is important to be mindful that there are individual differences amongst people who have been diagnosed with FASD.
The degree of abnormality in any one measure can vary greatly between individuals and can change with time in the same individual. For example, people diagnosed with FAS can have IQs from well within the normal range to the severely mentally retarded range. The physical anomalies can be slight or quite striking. Some people with FAS live fairly normal lives if given adequate and structured support throughout their lives, whereas others are severely impaired. 
The fact that there are individual differences amongst people who have FASD is an important factor to consider in relation to policy options that examine youth who have FASD as a class.
-  Issues related to Fetal Alcohol Syndrome (FAS) and criminal justice have been explored recently by a number of authors. See. J. Conry & D.K. Fast, Fetal Alcohol Syndrome and the Criminal Justice System (Maple Ridge: British Columbia Fetal Alcohol Syndrome Resource Society, 2000); J. Dagher-Margosian "Representing the FAS Client in a Criminal Case" in A. Streissguth & J. Kanter, eds. The Challenge of Fetal Alcohol Syndrome (Seattle: University of Washington Press, 1997) 125; R. LaDue & T. Dunne "Legal Issues and FAS" in A. Streissguth & J. Kanter, eds., The Challenge of Fetal Alcohol Syndrome (Seattle: University of Washington Press, 1997) 146; K. Page "Fetal Alcohol Spectrum - The Hidden Epidemic in our Courts" (2001) 52(4) Juvenile and Family Court Journal 21.
-  The notion that humanity has recognized the association between alcohol and birth defects for a millennia is a fallacy. The so-called historical allusions in the literature have been misconstrued; see E. Armstrong. "Diagnosing moral disorder: the discovery and evolution of Fetal Alcohol Syndrome" (1998) 42 Social Science Medicine, 2032-2034.
-  K.L. Jones & D.W. Smith, "Recognition of the fetal alcohol syndrome in early infancy" (1973) 836 The Lancet 999.
-  E. L. Abel, Fetal Alcohol Syndrome and Fetal Alcohol Effects. (New York: Plenum Press, 1984).
-  Institute Of Medicine, K. Stratton, C. Howe, F. Battaglia, eds., Fetal Alcohol Syndrome: Diagnosis, Epidemiology, Prevention, and Treatment (Washington, D.C: National Academy Press, 1996).
-  (1) FAS with confirmed maternal alcohol exposure, (2) FAS without confirmed maternal alcohol exposure; (3)Partial FAS with confirmed maternal alcohol exposure.
-  IOM, supra note 5 at 76-77.
-  Abel concluded that the prevalence of FAS in low SES groups was ten times greater than in high SES groups: E. Abel, "An Update on Incidence of FAS: FAS Is Not an Equal Opportunity Birth Defect" (1995) 17 Neurotoxicology and Teratology 437.
-  P.A. May & J.P. Gossage, "Estimating the prevalence of Fetal Alcohol Syndrome: A Summary" (2001) 3 Alcohol Research and Health 159.
-  R.J. Williams, F.S. Odaibo, & J.M. McGee, "Incidence of fetal alcohol syndrome in northeastern Manitoba" (1999) 90 Canadian Journal of Public Health 192.
-  D.K. Fast, J. Conry, & C.A. Loock, "Identifying Fetal Alcohol Syndrome Among Youth in the Criminal Justice System". (1999) 20 Developmental and Behavioural Pediatrics 370.
-  The term "cognitive" is herein used to describe the concepts of thinking, learning, memory, and attention.
-  Abel, supra note 4 at 131.
-  A. Streissguth et al., "Primary and Secondary Disabilities in Fetal Alcohol Syndrome" in A. Streissguth & J. Kanter, eds., The Challenge of Fetal Alcohol Syndrome: Overcoming Secondary Disabilities (Seattle: University of Washington Press, 1997).
-  Assuming a population standard deviation of 15.
-  C. Famy, A.P. Streiss guth, & A.S. Unis. "Mental Illness in Adults With Fetal Alcohol Syndrome or Fetal Alcohol Effects" (1998) 155 American Journal of Psychiatry, 552.
-  This initiative would be in keeping with the Standing Committee on Justice and Human Rights' recommendation that the Department of Justice, in collaboration with their territorial counterparts, engage in "systematic, broad-based data collection and analysis": Standing Committee on Justice and Human Rights, Review of the Mental Disorder Provisions of the Criminal Code (Ottawa: House of Commons, 2002) at 18 [Hereinafter The Standing Committee Report].
-  IOM, supra note 5 at 18-19.
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