FASD & the Justice System

In R v. J (T.) (1999), the Yukon Territorial Court described some of the forensically significant behaviours associated with the primary disabilities of FASD. These behaviours reflect the underlying brain damage caused by prenatal exposure to alcohol.

The effect of alcohol on the fetal brain is such that this region (anterior frontal brain) does not develop sufficiently to allow the FAS individual to appropriately control his or her actions.  As such, FAS patients tend to be impulsive, uninhibited, and fearless.  They often display poor judgment and are easily distracted. Difficulties in perceiving social cues and a lack of sensitivity often cause interpersonal problems.

FAS patients have difficulties linking events with their resulting consequences. These consequences include both the physical, e.g., getting burned by a hot stove, and the punitive, e.g., being sent to jail for committing a crime. Because of this, it is difficult for these individuals to learn from their mistakes.  Lacking sufficient cognizance of the threat or fear of consequences, the FAS patient is less likely to control his or her impulsive behaviour. Similarly, FAS individuals have trouble comprehending that their behaviour can affect others. As such, they are unlikely to show true remorse or to take responsibility for their actions.

R v. J (T.) (1999) Y.J. No57

Research has also found that people with FASD who enter the justice system as accused, witness or complainant “may give false confession or a false statement and in court, may appear confused or give contradictory explanations.  A witness … may interpret questions too literally or deny something that seems obviously true.  The victim with (FASD) may not clearly remember details of time, place and sequence, and may be easily influenced by leading questions.”   (J. Conry and D. K. Fast. 2000).

(Chart) Primary Behaviours Related to FASD Chart - justice implications