Facing frustrations of FASD

By Kathryn Kelly

On Sept. 9, the ninth day of the ninth month, we observe International FASD Awareness Day and National FASD Awareness Day; a reminder to women not to drink during the nine months of pregnancy.
Fetal Alcohol Syndrome and the broader range of disabilities known as Fetal Alcohol Spectrum Disorders can occur if a mother drinks at any time during her pregnancy. We now know the damage alcohol does to the baby’s brain can start well before a mother is aware of her pregnancy, beginning when the embryo is just 22 days old.
Most of us don’t have our pregnancies confirmed until many weeks or even months later, so the damage can already have occurred in the time before a mother learns she’s pregnant. It’s a common birth defect that affects one in every 100 babies born.
Because the damage is not just physical, but behavioral — the most vulnerable to harm is the baby’s brain — babies born with FASD have increasing problems as they grow. They can be more active than most and have problems with attention, concentration and focus.
When they find themselves in the first-grade classroom, they may have trouble just sitting still. Without a diagnosis, teachers and parents are at a loss to know how to help. Frustration and failure can follow and by adolescence, this young person can be on a trajectory for trouble.
The impairments that many with this disability have include attention deficits, so they are easily distracted; poor judgment, so they are easily victimized; undependable memory, so they don’t learn from experience; difficulty with abstract concepts, so they don’t understand consequences; difficulty perceiving social cues; and impulsivity, which makes them more likely than those who are not affected by prenatal alcohol exposure to find themselves in trouble with the law.
Our research at the University of Washington Fetal Alcohol and Drug Unit, for the Centers for Disease Control, show that 60 percent of those diagnosed with FASD have gotten in trouble with the law, 50 percent have been confined in a jail, prison, a residential drug treatment program or psychiatric facility, 60 percent have a disrupted school experience, 90 percent have sought treatment from a mental health professional and 50 percent engage in inappropriate sexual behavior.
Despite what the Florida Supreme Court wrote about a defendant with FAS in Dillbeck v. State, “We can envision few things more certainly beyond one’s control than the drinking habits of a parent prior to one’s birth,” we hold these individuals fully accountable for the impaired behavior which results from their disability.
Research in Canada and the U.S. suggests between 16 and 23 percent of those in our juvenile justice system are affected by FASD. Those young people grow to adulthood and, without a diagnosis and targeted strategies, they continue to stumble in and out of trouble.
Last month, the 35,000-member Canadian Bar Association issued Resolution 10-02-A, entitled, Fetal Alcohol Spectrum Disorder in the Criminal Justice System. They prefaced the resolution with descriptions of the behaviors described previously, and then pointed out that, “the criminal justice system is based on normative assumptions that a person acts in a voluntary manner, makes informed choices with respect to the decision to commit crimes, and learns from their own behavior and the behavior of others.
“… These normative assumptions and the sentencing principles such as specific and general deterrence are not valid for those with FASD.” They noted that sentencing options available to Canadian judges were “often ineffective” in changing the behavior of those with FASD, and that “laws, programs or activities” which could be helpful were needed.
The resolution itself called for support for an initiative to allocate more government resources for alternatives to the current practice of involving those with FASD in the justice system, urged the government to develop policies to enhance the lives of those with FASD, to prevent over-representation of those with FASD in the criminal justice system and to amend criminal sentencing laws to accommodate the disability of those with FASD.
The Canadian Bar Association’s resolution recognizes a justice system problem that has long gone unrecognized. The resolution frames the problem but does not purport to provide solutions. Canadian government officials have devised an initiative and will pursue solutions through it. Here in the U.S., we need to find a path that is workable in our justice system, perhaps relying on our judges, prosecutors, defense counsel, probation officials, law enforcement and others in the field.
As one of the Sept. 9 events, Frontier Community Services will sponsor a Kenai Peninsula conference, The Hidden Problem of Fetal Alcohol Spectrum Disorders in the Legal System; A Solution Focused Forum. The forum takes place Sept. 11 in the Challenger Learning Center of Alaska in Kenai.
This gathering of judges, attorneys, other court professionals, law enforcement and corrections officers, behavioral health professionals, parents, advocates and interested community members will work to develop the creative solutions and innovative strategies that are called for by the Canadian Bar Association’s resolution.
You are invited to join us. Call Vickie Tinker, coordinator of the Kenai Peninsula FASD Multidisciplinary Team, at (907) 714-6648 to reserve a spot.

Kathryn Kelly is project director of the FASD Legal Issues Resource Center at the University of Washington, and will be a presenter at the Sept. 11 forum in Kenai.

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