FASD Justice
“They see the world through a different window.”
Introduction
FASD is a severe and pervasive neurodisability resulting from the brain being exposed to alcohol in its formation. It is an invisible disability that is expressed through behaviour, learning, social and emotional problems that are not intentional but the direct result of brain damage. In our society where drinking is the predominant culture and normalised, it is no individual’s fault that many pregnancies are alcohol exposed and many children go on to be compromised in their development as a result.
Although first evident in childhood the brain damage and the limitations prenatal alcohol exposure (PAE) places on daily function remain lifelong, reducing capacity to live typically productive and independent lives throughout the lifespan. The capacity of the brain to judge situations, moderate actions and fit in around the wishes and rights of others is impaired and this causes problems for the child, adolescent and then adult and their loved ones who support them, as well as the community.
The Ministry of Health estimates that fifty percent of pregnancies in New Zealand are alcohol exposed. Most of this occurs before the mother recognises the pregnancy at which point the majority abstain (FASD Working Group, 2016). However, around a quarter of pregnant women report continued drinking and twelve percent do so at levels that are hazardous to human health, thus placing the unborn child at greater risk of FASD (Mallard et al, 2014).
Many women receive little, poor or no professional advice about the risk posed by alcohol and it is still not common knowledge that drinking in pregnancy may cause lifelong brain damage in the baby born. FASD is a societal problem with large numbers of individuals with FASD falling through the cracks in systems and services to not reach their true potential. Due to unmet disability needs those with FASD are at increased risk of being harmed and causing harm. This brings large numbers of children, young people and adults with FASD into the legal system both as victims and as offenders.
Individuals with FASD tend to be immature, trusting, gullible and lacking in common sense. If the environment is suitably adapted to the disability, they can thrive and live productive lives. However, this requires the provision of structure, supports and supervision and most have missed out on this. Currently FASD is not recognised in New Zealand as a funded disability and it is only those with an extremely low level of intellectual ability who are eligible for disability supports. Each has a strength which is unlikely to be in an academic area but more likely in practical areas such as sports, music, art, gardening or a love of animals. When strengths are optimised and life can progress simply without stress, there is no need for those with FASD to come to the attention of the law. However, when disability supports are not in place the risk of offending and being victimised is extremely high.
The child with FASD will struggle at school unless the FASD disability is recognised and suitable supports are put in place. They may not be able to focus, learn, retain, follow instructions, inhibit their actions and realise how their behaviour impacts on others, thus tending to break rules. The young person may have experienced considerable failure at school, will readily follow and not fully comprehend the consequences of things that they and others do. The adult with FASD if unsupported will not be able to manoeuvre life’s obstacles to become responsible for themselves and others.
In Canada it has been shown that individuals with FASD are 19 times more likely to be incarcerated (Popova et al 2011). Estimate range from 11% to 24% (Conry & Fast, 2000; McPherson & Chudley 2011). A recent study of mostly aboriginal youth sentenced to detention in West Australia found high rates of neurodisability and a rate of 36% with diagnosed FASD (Bower, Watkins & Mutch et al 2017). An earlier study in America found that 60% of individuals who had been diagnosed with FASD ran into trouble with the law (Streissguth et al, 1996). In the absence of any New Zealand studies we can assume that the situation is no better, due to the relatively high incidence of drinking in pregnancy.