Weighing responsibility in a case involving an accused with FASD starts by recognizing the effect of FASD on adaptive and executive functioning. “One judge has considered FASD to be capable of taking away an individual’s ability ‘to act within the norms expected by society.’” (Roach, K. and Bailey, A. 2009).
Adaptive functioning includes the age-appropriate behaviours necessary for people to live independently and to function safely and appropriately in daily life. Maladaptive behaviours among people with FASD may include antisocial, rebellious, self-abusive or sexually inappropriate behaviours and increase the likelihood that a person with FASD will experience secondary disabilities (Clark et al, 2004). The secondary disabilities of FASD include:
- poor social relationships
- inability to live independently
- poor judgment in work, school and community situations
- poor personal hygiene
- not learning from punishment and/or consequences
- frequent re-offending
- mental illness.
Executive functions are a collection of brain processes that are responsible for planning, abstract thinking, rule acquisition, initiating appropriate actions and inhibiting inappropriate actions, and selecting relevant sensory information. A person with FASD may have poor executive functioning skills that result in:
- limited ability to think beyond the present
- difficulty getting and keeping steady employment
- susceptibility to delinquent lifestyle
- trouble planning ahead
- difficulty delaying gratification or controlling impulses
- the inability to generalize.
When considering non-custodial dispositions for offenders with FASD, the court must consider the offender’s unique needs and disabilities in order to craft terms of probation orders that can be understood and abided by. People with FASD also require comprehensive and consistent supports to provide them with ongoing advice, direction, and structure, as well as to advocate on their behalf. Without that support offenders with FASD are unlikely to:
- understand and meet terms of community supervision
- demonstrate progress towards rehabilitation.