FASD has life-long physical, mental and behavioural consequences. However, for most FASD affected individuals it is an invisible disability without discernable physical characteristics. Researchers refer to primary and secondary disabilities resulting with FASD. Diagnostic capacity is limited and as a result, FASD is under-recognized and under-diagnosed. However, Canadian medical researchers are working to streamline the diagnostic process and refine the behavioural profile.
i. Primary and Secondary Disabilities of FASD
a. Primary Disabilities - Justice Implications
In R v. J (T.) (1999), the Yukon Territorial Court described some of the forensically significant behaviours associated with the primary disabilities of FASD (then referred to as FAS). These behaviours reflect the underlying brain damage caused by prenatal exposure to alcohol.
The effect of alcohol on the fetal brain is that the anterior frontal region of the brain does not develop sufficiently to allow a person with FASD to appropriately control their actions. Some people with FASD 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.
People with FASD might also 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, a person with FASD is less likely to control their impulsive behaviour. Similarly, they have trouble comprehending that their behaviour can affect others. As such, they may not show true remorse or take responsibility for their actions.
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.”
b. Secondary Disabilities
Secondary behaviours “develop over time when there is a chronic 'poor fit' between the person and his or her environment. Defensive behaviours are normal protective reactions to frustration…. By definition, these are preventable when a good fit is provided.” (Malbin, D. 2004).
The secondary disabilities of FASD include: [LINK TO SECONDARY DISABILITIES CONTENT FOR MORE INFO]
Individuals with FASD are also vulnerable to manipulation. False confessions, acquiescence, difficulty understanding simplified cautions and consent have all been identified as issues that are affected by vulnerability to manipulation (Clark, E. 2004).
Offenders with many secondary behaviours should be assessed for FASD. Various behaviours can provide helpful cues for identifying points of intervention and support for individual offenders with a view to rehabilitation or correction.
ii. Economic Costs of FASD
FASD carries very high costs for the affected individual, the family and society. On the individual level, one 2009 Canadian study referenced in a 2014 literature review estimated that the annual direct and indirect costs associated with FASD at the individual level were $21,642. Direct costs included medical, education, social services, out-of-pocket costs; and indirect costs included productivity losses.
On the societal level, one study based on data collected in 2014 estimated the overall costs of FASD within the Canadian criminal justice system at $3.9 billion per year, broken down as follows:
· $1.2 billion for policing costs
· $0.5 billion for correctional services
· $1.6 billion related to issues faced by victims (for example, increased health care costs, productivity costs for victims and third parties who accompany them to court, and money paid to victims through government victim compensation schemes)
· $0.2 billion for third-party costs (for example, costs to replace stolen items and other costs associated with crime
iii. Incidence and Prevalence of FASD
While there are no national statistics on the rates of FASD in Canada, international estimates are that 9 in every 1000 babies are born with FASD. This means that more than 3,000 babies are born in Canada each year with FASD, and approximately 300,000 people are currently living with this lifelong disability. However, diagnosing FASD takes time and special expertise, and a diagnosis may not be made early in a child's life, or may be missed entirely (PHAC 2008). Consequently, FASD is highly under-diagnosed among the general Canadian population (Clarren 2008).
Prevalence of FASD in correctional systems overall in Canada is not known. But research on prevalence of FASD in the justice system overall suggests that FASD is underdiagnosed.
One Canadian study of adult inmates resulted in 10% of the participants being diagnosed with a FASD – and a diagnosis of FASD could not be confirmed or ruled out with another 15% of the participants.
Prevalence of FASD in the youth correctional system is also high, although there are fluctuations in the data depending upon the method of study used and the availability of screening protocols. Four Canadian studies cited in one 2018 Australian study estimated prevalence of FASD amongst youth in custody at 10.9%, 11.7%, 21%, and 23.3% respectively.
FASD is especially overrepresented in the Indigenous populations of incarcerated people. Anecdotal evidence suggests that up to 50 percent of Indigenous people who have been incarcerated have FASD.