Young people with FASD are disproportionately represented in the youth criminal justice system. Certain characteristics of FASD put them particularly at risk. Difficulty with memory and abstract concepts such as time, and impaired judgement and language skills often lead to behaviors that can get youth in trouble with the law and then with the criminal justice system. Communication difficulties are especially problematic if a young person living with FASD is a victim or witness.
People with FASD often rotate between being a witness, a victim, or an accused, and in an encounter with the justice system they may be all of these. It’s important to remember that young people with a disability such as FASD have a right to be accommodated within the criminal justice system whether they are a witness, victim or accused, and modified supports are likely needed.
The following challenges associated with FASD can cause complications FASD for youth in trouble with the law:
- attention problems, including difficulty concentration for long periods of time
- difficulty with cause and effect reasoning
- difficulty linking actions with consequences
- acting much younger than their age
- language processing problems
- comprehension difficulties
- social skills deficits
- problems with short term memory and time
- risk of confabulation (filling in the blanks when they don’t remember with details or events that didn’t actually happen)
- impulsive behaviour
- high anxiety that leads to them acting out or shutting down
Communication challenges make it difficult for a young person with FASD to understand information about the criminal justice system and their case. They may not be able to relay necessary information to police or counsel and they may not understand instructions. They may mask their confusion by talking a lot. This leads to misunderstanding because others may think they understand more than they actually do. They may sound offhand, but in fact subtleties of language use are likely beyond them. Idioms, or sarcasm, can cause confusion. A young person with FASD who is involved with the criminal justice system will almost always need someone who is familiar with FASD to help them communicate—because of their receptive and expressive language problems.
Language challenges do not mean that the youth living with FASD can’t understand, but it is important for those trying to communicate with them to be open to communicate in alternative ways. Using visuals and simple concrete language can be helpful, and so can speaking slowly and clearly, giving one direction at a time, and making eye contact. It can be very helpful to provide a place with low lightening that is free from overloading sensory stimulation. It’s important to listen carefully and use patience to sort out what the young person is trying to say.
Language deficits can be particularly challenging for a young person living with FASD because the court system is very verbal. There are many instructions, formal procedures, and documents to sign. They might agree to anything requested of them. As they are often in situations that are beyond their capacity to understand, they may be used to covering up feelings of confusion and pressure. A young person with FASD might consent and sign without understanding, simply to be able to go home . They may confess without any appreciation of the consequences. They may be hiding their confusion, or they may not be good at making someone else aware at how confused they are or how pressured they feel. It is important to ask what they think is happening, rather than if they understand.
In working with accused, witnesses or victims with FASD, it is also important to also remember that the accused’s chronological age may not match their functional age . For example, in one study, the median chronological age of participants with FAS was 16 years, 5 months, while their functioning age was 6 years, 7 months.
Fatigue may also be a major factor. Adolescents with FASD tend to tire easily. They may have sensory processing problems that can lead to high levels of stress because of the bright lights and noises of the courtroom or the interview room. Youth living with FASD spend so much of their mental energy trying to focus and pay attention that they run out of cognitive energy quickly.
Many have trouble controlling impulsive behaviour, struggle with poor communication skills and are easily confused under pressure. They may not understand or hear the entire legal caution, become “chatty” after arrest and say self-incriminating things.
Also, people with FASD often have memory problems. While some researchers have found that youth with FASD tend to lie, others suggest that what is really going on with FASD-impaired youth is adaptive behaviour meant to compensate for memory impairment. As mentioned above, eager to please people in authority, a young person with FASD may provide a false confession to please police, or in the belief that if they confess they will be allowed to go home. They tell you what they think you want to hear. They adapt their responses to the cues they read on the face of the person asking the questions – so the story varies.
Youth with FASD often face overlapping legal and other issues at the same time. For example, they may not be able to access appropriate health care services; their learning needs may not be accommodated at school; and they may be more likely to be the victim of a serious crime.
This is compounded by the reality that children and youth are often given little personal agency. In the case of youth with FASD, there may be more of a focus on their disabilities rather than their abilities. This may mean that they are not consulted or heard from about issues important to them.