Ethnic and Cultural Factors in Identifying Fetal Alcohol Spectrum Disorders
George Woods, M.D., Stephen Greenspan, Ph.D., and Bhushan S. Agharkar, M.D.
A large percentage of those involved in the criminal justice system are poor and represent ethnic minorities, and many of them were born to mothers who drank during pregnancy. In this article, we review literature pertaining to physical, social, cognitive, and neurological deficits of individuals with Fetal Alcohol Spectrum Disorders (FASD), exploring the possibility that these deficits or their outward expression may be affected by cultural and ethnic influences. For the most part, the evidence suggests that the indicators of FASD are universal across all racial and cultural groups. These indicators are, however, often obscured in individuals from certain backgrounds, due to the salience of what might be termed “cultural overshadowing.” This could be considered a form of unconscious or institutional discrimination, in that it denies criminal defendants from certain cultural backgrounds the opportunity to have courts take into account the possibility that their alleged or proven offenses were affected by serious brain-based impairments in reasoning and judgment. The law allows for consideration of these impairments in both sentencing and mitigation.
Suggestibility and Fetal Alcohol Spectrum Disorders: I’ll Tell You Anything You Want to Hear
Natalie Novick Brown, Ph.D., Gisli Gudjonsson, Ph.D., and Paul Connor, Ph.D.
This article reviews the role of suggestibility as a psychological vulnerability in people with FASD who are arrested and questioned by police. After a review of relevant literature on suggestibility and FASD, preliminary data are presented from a small pilot study on suggestibility involving defendants with FASD in the United States who were involved in either a pre-trial or post-conviction adjudication process. Results of that study suggest that persons with FASD may be highly suggestible in interrogative situations, which appears to stem from a combination of neurologically based tendencies to acquiesce to leading questions and change responses to questions as a function of negative feedback. Interrogative suggestibility found in the FASD population, which is likely due to central nervous system dysfunction, has broad forensic implications.
A Judicial Perspective on Issues Impacting the Trial Courts Related to Fetal Alcohol Spectrum Disorder
Hon. Anthony Wartnik, J.D. and Hon. Susan Shepard Carlson, J.D.
This article explores issues that judges, prosecutors, defense counsel, treatment providers, and defendants face when a person who has, or may have, Fetal Alcohol Spectrum Disorders (FASD) is charged with a crime. The article is divided into three sections: the first section discusses basic legal concepts and how they relate to those in the criminal justice system who suffer from FASD; the second section examines case studies and lessons learned from the therapeutic drug court, a program of the King County Superior Court in Seattle, Washington; the final section presents case studies of serious felonies, and explores constitutional issues.
Fetal Alcohol Spectrum Disorders and Victimization: Implications for Families, Educators, Social Services, Law Enforcement, and the Judicial System
Karen Smith Thiel, J.D., Ph.D., Nora Baladerian, Ph.D., Katharine R. Boyce, J.D., Olegario Cantos VII, J.D., Leigh Ann Davis, M.S.S.W., M.P.A., Kathryn A. Kelly, B.A., Kathleen Tavenner Mitchell, M.H.S., and James Stream, M.B.A
Individuals with Fetal Alcohol Spectrum Disorders (FASD) are vulnerable to many forms of victimization. FASD is associated with cognitive deficits and a set of behaviors that may limit an individual’s ability to recognize and report victimization experiences and provide testimony in judicial proceedings. Services must be established and provided to educate and train individuals with FASD, their family members, teachers, and social service workers to prevent victimization and report victimization when it occurs. Law enforcement and the judicial system also should develop systems to protect the rights of individuals with FASD who are victimized, especially when they appear as witnesses.
The Criminal Justice System’s Disparate Treatment of Individuals with Fetal Alcohol Syndrome Disorders in Cases Involving Sexual Activity
Jacqueline McMurtrie, J.D.
Individuals with Fetal Alcohol Spectrum Disorders (FASD) are treated differently by the criminal justice system in sex offense prosecutions, depending upon whether they are categorized as victims or perpetrators. The primary and secondary disabilities associated with prenatal alcohol exposure are often taken into consideration when assessing the capacity of a victim to consent to sexual activity, but generally not considered in determining whether a defendant had the mens rea to engage in criminal sexual conduct. This article traces the historical underpinnings of the mens rea requirement in criminal law and discusses its elimination in most prosecutions for statutory rape. The article recommends that additional research be conducted to determine the impact of prenatal alcohol exposure on an individual’s capacity to consent to sexual activity. It suggests that fundamental principles of culpability require an examination of how FASD impacts an individual’s capacity to engage in meaningful, responsible, decision making about sexual activity before criminal sanctions are imposed.
A Court Team Model for Care of Young Children in Foster Care: The Role of Prenatal Alcohol Exposure and Fetal Alcohol Spectrum Disorders
Larry Burd, Ph.D., Hon. Constance Cohen, J.D., Rizwan Shah, M.D., and Judy Norris, B.S.
Prenatal alcohol exposure (PAE) is common with about 80,000 women continuing to drink through all three trimesters of pregnancy each year. PAE is also associated with postnatal adversities, including abuse and neglect, which increase risk for foster care placement. Each day 700 children enter the foster care system. A diagnosis of Fetal Alcohol Spectrum Disorders (FASD) also increases the risk for foster care placement. Among children diagnosed with FASD 70% are or have been in foster care. FASD prevalence rates are increased 10- to 15-fold in foster care systems. Foster care is an important opportunity to detect FASD and provide services to infants and children with FASD. FASD is the third most common identifiable cause of mental retardation in the United States. We describe a court-team-based model of care developed to improve management of children with PAE or FASD entering foster care. The programmatic objectives include: enhancing detection of PAE; screening for FASD; increased consideration of FASD as a potential issue in treatment planning with foster parents; improved entry into treatment; and increased surveillance for parents with an FASD.
Legal and Psychological Implications of Non-Disclosure in the Adoption of a Child with
Fetal Alcohol Spectrum Disorder
Sharon James Williams, J.D., M.P.H., Daniel Dubovsky, M.S.W., and Jason Merritt, M.A.
Approximately 127,000 children were adopted in the United States in 2000 and the same number in 2001. When adoptions go well, the events that follow are mostly private family matters. On other occasions, families discover that they have adopted a child who is suffering from mental and/or physical ailments. In cases where the adoptive parents are not aware of the child’s medical history, adoptions can have unfortunate endings, including adoption disruption, litigation, interfamily violence, and even death. This article focuses on the issues involved when a family discovers post-adoption that the child has Fetal Alcohol Spectrum Disorder (FASD). The article will first discuss the evolution of adoption and disclosure in the United States, then provide background on the nature of FASD and the difficulties of recognizing cases. The article will then focus on (a) the psychological impact on parents who have adopted a child who is found to have FASD and (b) the impact of disclosure upon state, national, and international law. The article concludes with recommendations for improving disclosure standards and reducing the risk of FASD going undetected and undisclosed in