FASD & the Justice System

In all criminal cases, the crown must prove that the accused committed the offence (actus reus), and that he or she had the requisite mens rea (“guilty mind”) to support a finding of criminal fault. 

As discussed in other sections of this website (Investigation, Pretrial and Bail), memory problems, impulsivity and hyper-suggestibility raise the risk of false confession by individuals with FASD. “On repeated questioning, the individual with FAS/FAE, who is often susceptible to suggestions of what might have happened, may incorporate these suggestions into his or her own retelling of the event.”  (Conry and Fast. 2000).  Similarly, youth with FASD are often eager to please people in authority, and may provide a false confession to please police, or in the belief that if they confess they will be allowed to go home.  (US Dept. Health and Human Services, SAMHSA. 2007). These and other cognitive problems associated with FASD should be considered at the outset when considering whether the accused committed the offence (actus reus).  

In addition to proving actus reus, the legal concept of mens rea requires proof that the accused intended to commit an action that he or she knew was prohibited. Mens rea may involve general or specific intent, recklessness or willful blindness to the consequences of ones actions.

“Our system of justice is founded on the premise that defendants understand the relationship between actions and outcomes, between intentions and consequences, that people who make choices are responsible for the fallout. The cognitive impairments of persons with FASD call these fundamental premises into question.”  (Green, M. 2006) 

As discussed in other sections of this website (Recognizing FASD in the Justice System) individuals with FASD tend to be very concrete in their thinking.  They are often unable to learn from past mistakes. “Typically they do not make connections between cause and effect, anticipate consequences or take the perspective of another person.” (Moore, T. E., and M. Green, 2004).  Even where the accused has a normal IQ score, he or she may have problems with “poor memory, slow ability to learn new skills, inability to learn from past experiences and problems recognizing the consequences of his actions….” (Buxton, B. 2004).

It is therefore important that in cases involving individuals with FASD, mens rea be considered in the context of the individual’s cognitive and behavioural challenges and deficits.