Why justice considerations are important
Legal issues are intertwined with Fetal Alcohol Spectrum Disorder. This is not intrinsic to the disability but reflects the systemic challenges associated with recognizing and accommodating the disability. FASD is permanent and lifelong and presents with a complex constellation of behaviour and learning profiles. Individuals with FASD who receive appropriate supports and interventions – early diagnosis, stable and nurturing home lives, tailored education programs, and support into adulthood – are able to contribute their skills and talents to their community successfully. This should be the outcome for all those living with FASD but the current statistics are grim.
What facts about people affected by FASD do service providers (e.g. health professionals, teachers, social workers, police officers, soccer coaches, judges) and families need to take into consideration?
- Mothers of children born with FASD are at significant risk of early death: they are 45x more likely to die before their 50th birthday than women who did not have a child with the disability.
- They may have many children and their children are more likely to be taken into custody because their disability interferes with effective parenting: 80% of children with FASD are raised by someone other than their birth mother.
- Children with FASD have high rates of mental illness and trauma due to neglect, abuse and inappropriate interventions. Behaviour and learning challenges are often addressed as only trauma or behaviour disorders; the disability is missed. Without interventions tailored to incorporate the areas of impairment and strengths, interventions fail. This contributes to further trauma and adverse outcomes.
- Family and placement breakdown impedes effective advocacy resulting in school failure, victimization and involvement in antisocial behaviour.
Once involved in the youth justice system, often the result of disordered behaviour, petty crimes, and or manipulation by others, individuals with FASD remain in the system. Lack of an appropriate judicial response to the disability makes them vulnerable to cycling in and out of the family and criminal justice system: youth with FASD are 19 times more likely to be incarcerated than non-affect peers; there are high rates of false confessions; FASD affects as many as 30% of incarcerated adults; those adults had an average of 15 convictions as youth.
What accommodations do service providers and families need to make?
No one tracks how often individuals with FASD are victimized but research shows that treating victims, witnesses, accused and offenders with FASD as if they did not have a disability is ineffective and contributes to victimization in and outside the legal system. Treating accused as bad or willfully non-compliant handcuffs us to a cycle of counterproductive, expensive, and ineffective responses. This diverts resources from prevention programs. Finding the right balance of support and intervention is required to assure personal and community safety. This adds urgency to the development of effective interventions, interventions that balance disability and moral blameworthiness for fair and just judicial decisions.
Effective strategies must be developed to protect the innocent and ensure community safety. A survey to identify Ontario-based program innovations, research and evaluation on FASD-related legal and justice services was conducted during the summer of 2103 (report in development). Preliminary review of findings identified many training initiatives but few formalized strategies to change the delivery of services.
Advocates must identify their needs for fair treatment and accommodation to effect change. Resources are slowing becoming available and this Action Group will review and recommend best options and promote engagement of stakeholders to improve access to: screening, assessment and diagnosis, programs that divert individuals from the criminal justice system, community and closed-custody programs that accommodate the developmental and learning needs of individuals with FASD to prevent recidivism.
What supports are helpful?
Individuals with FASD require support to help them navigate the legal system. The legal system also bears responsibility to consider the disability as it would if an individual were blind, deaf or had a psychical impairment. FASD, an organic brain injury, requires accommodation for deficits in language processing, memory and executive functioning. These deficits are innate to the disability; without accommodation the courts risk breaching the code for fair and just treatment.
The 2013 Justice Consensus Statement, developed by legal experts across the country found that adjustments to criminal laws for people with serious mental disabilities including FASD were needed. It recommends
- protections for adults with mental disabilities similar to some existing protections for youth in the youth Criminal Justice Act;
- increased emphasis on rehabilitation as a goal of sentencing;
- recognizing mental disability as a factor in the degree of responsibility of an accused;
- and more flexibility in sentencing people with mental disabilities.
The justice system should keep people with FASD out of the criminal justice system as much as possible; provide more-stable placements and enhanced transition planning for children with FASD placed in care, as well as FASD-specific training for everyone in the child protection system; mandate training for judges, lawyers, and others in the system to recognize FASD; provide a full medical examination of every child taken into care or into a correctional facility, including a screen for FASD; provide access to rapid FASD assessment and diagnosis at critical points in the justice process, eg sentencing.
These recommendations can provide direction for the province to ensure the rights of victims, witnesses, accused and the convicted are weighed. This will result in more nuanced, research-informed effective practice reducing the negative impact on individuals, families and the community.
What services (e.g. clinics, programs, support groups) are available?
Innovative programs that make a difference:
FASD & Justice – E-Scan – Nov 2015 (1) This environmental scan will examine FASD and justice programs across Canada with attention to both youth and adult programs. This environmental scan is a working document that aims to engage with the youth and adult justice sectors to facilitate understandings of programs and practices, and is the first step in formulating a comprehensive summary of FASD and the justice system across Canada.
FASD and Justice Survey Summary Report Phase One This report provides insight into the perceived prevalence rate of Fetal Alcohol Spectrum Disorder within mental health and justice sectors and identifies service priorities for this vulnerable population. Authors: Sheila Burns and Lynda Legge Justice Action Group, FASD Ontario Network of Expertise
FASD and Justice Report Phase Two This report summarizes FASD initiatives within the mental health, social services, and justice sectors in Ontario. Author: Sheila Burns Justice Action Group, FASD Ontario Network of Expertise
- Li Q et al, A Population Based Study of Premature Mortality Rates in the Mothers, 2011
- Streissguth A, Sampson et al. (1997), Teratology, Volume 56, Issue 5, November 1997, Pages 317-326
- Streissguth, A.P., Barr, et al (1996). Understanding the occurrence of secondary disabilities in clients with fetal alcohol syndrome (FAS) and fetal alcohol effects (FAE): Final report to the Centers for Disease Control and Prevention on Grant No. RO4/CCR008515 (Tech. Report No. 96-06). Seattle: University of Washington, Fetal Alcohol and Drug Unit.
- Streissguth, A.P., Barr, H.M., (1996)
- Svetlana Popova, S. et al Fetal Alcohol Spectrum Disorder Prevalence Estimates in Correctional Systems: A Systematic Literature Review, Canadian Journal of Public Health September/October 2011
- MacPherson, P FASD in a Correctional Population: Preliminary Results from an Incidence Study, Addictions Research Centre Correctional Service Canada, 2007