FASD and the Law

There’s good news from government about FASD. Unfortunately, the news isn’t Canadian.  Not yet, anyway.

Readers of my blog may have read my entry earlier this month about the Canadian government’s proposed get-tough-on-crime Bill C-10  and its potential negative affect on the Youth Justice system. If the bill passes, it could mean more and longer jail time for young offenders, a potentially disturbing consequence for some young individuals with Fetal Alcohol Spectrum Disorder (FASD) who may get caught in the new system’s dragnet. What these young people need is improved services and supports, not jail time (if you too are concerned, please contact your MP and MPP).

In light of this potentially bad news for Canada, good news is coming in from Illinois:

• the first state in the country to require FASD instruction in sex education classes.

• State Attorney Robert Berlin is heading an FASD Task Force aimed at creating a system to provide mental health screening for all youthful offenders for symptoms of FASD.

• All county clerks are supposed to provide a pamphlet describing the cause and effects of fetal alcohol syndrome to couples seeking marriage licenses.
  
  

These developments were announced by Appellate Court Justice Joseph E. Birkett, the former DuPage County State’s Attorney, speaking at an educational event his office organized for attorneys, judges, teachers, social workers and legal professionals to ensure the legal system is better educated about FASD.

Commenting on the large number of people attending the conference, Birkett said, “It’s good to know that people are willing to learn so we can improve the treatment of those suffering with FASD when they come into contact with the legal system.”

As a whole, the announced changes in Illinois are admittedly minor, yet I see them as enlightened first steps. These legislated changes show a recognition of issues related to FASD and the law, and were introduced by the State Attorney, an elected official who represents the State in criminal prosecutions, and often the chief law enforcement officer of a jurisdiction.

What I find most encouraging about the Illinois situation, if it comes to pass, is the proposed system to provide mental health screening for all youthful offenders for symptoms of FASD.

Though there is strong anecdotal evidence about the high prevalence of young offenders with FASD within the justice population in Canada, the rate has not been fully established, according to the Fetal Alcohol Spectrum Disorder and Justice website (developed by The FASD ONE Justice Committee of FASD ONE (FASD Ontario Network of Expertise) with funding from the Public Health Agency of Canada and the Department of Justice Canada, Youth Justice Policy.)

While studies have been carried out on prison populations, “forensic inpatients,” and youth on probation for criminal activities to determine the rate of FASD among these groups, two major studies suggest that individuals with FASD are not being identified in the justice system in Canada (Burd, L. 2003, DOJ, 2005).

In another study, however, researchers screened offenders undergoing preliminary assessment at Stony Mountain Institution near Winnipeg concluded that the incidence of FASD was ten times greater in the study sample compared to the general population (MacPherson, P. 2007).

The prevalence of victims of violent crime with FASD is not clear either. In 2009, researchers interviewed victim service workers across Canada who work with victims with FASD.  Anecdotal information suggested that FASD is under-diagnosed among victims of crime (Fraser, C. 2009).

Undoubtedly, identifying individuals with FASD who find themselves in the criminal justice system, as proposed in Illinois, would be a major step toward improving the investigation, pretrial, trial and sentencing of such offenders. As well, a clear idea of the prevalence of the problem would hopefully increase  recognition of the problem and encourage interventions to address them.

But as anyone familiar with FASD knows, this is no easy thing to do. FASD is a spectrum disorder. It’s not always easy to diagnose. The number and severity of symptoms vary from person to person and are sometimes masked by other disorders. Any assessments undertaken through the legal and criminal system need to be undertaken by qualified, experienced medical professionals trained in identifying FASD. Without such people in place, I would think assessments for FASD would be meaningless. I’m assuming they know that in Illinois.

Excellent work regarding FASD and the justice system has been undertaken in Canada. .

I’ll cite two here.

For detailed information about court cases, trials, bail, sentencing, etc. related to FASD and the Justice System, please see http://fasdjustice.on.ca Information available in both English and French.

For a detailed bibliography and links to American and Canadian FASD-related legal cases, research, and papers about FASD and the Criminal Justice System, go to B.C.’s Asante Centre’s website  http://www.asantecentre.org/legal.html