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Fetal Alcohol Spectrum Disorder and the Youth Criminal Justice System:
A Discussion Paper
Paul Verbrugge
October 2003
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Abstract
Legal issues related to Fetal Alcohol Spectrum Disorder (FASD) have
been explored recently by a number of authors. [1] 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.
1.0 The FASD Construct
The association between maternal alcohol consumption and birth defects
is a relatively recent discovery. [2] The term Fetal Alcohol Syndrome (FAS) was first
introduced in 1973 [3] 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.[4] One of the most prominent systems was advanced by the
American Institute of Medicine (IOM) [5]. 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. [6] 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. [7]
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. [8} May and Gossage,[9} 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.[10] 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.[11]
The most pressing legal issues arise from the cognitive [12] 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." [13]
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 [14] 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,[15] 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. [16] 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. [17]
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. [18]
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.
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