Victimization of Individuals with Fetal Alcohol Syndrome/Fetal Alcohol
By Kathryn Ann Kelly
a crime is committed against a person with Fetal Alcohol Syndrome
(FAS) or Fetal Alcohol Effects (FAE), it is highly unlikely that
the criminal Justice system will react to protect and serve the
victim. Cases in which the disability can generally be seen or surmised
by police and prosecutors ---, blindness or deafness, for example
- have at least a possibility that the criminal justice system will
respond with the vigor and force used to protect and serve victims
without disabilities. Although the disabilities caused by Fetal
Alcohol Spectrum Disorder (FASD) are not as obvious as blindness
or an inability to walk (indeed. they are usually not visible except
to the trained eye), they warrant particular attention when the
individual with that disability is the victim of a crime.
Is No Safe Level of Alcohol a Mother-to-be Can Use Before and During
and FAE (referred to collectively as Fetal Alcohol Spectrum Disorder
(FASD) affect two to three million adults and children in the United
States. Police, prosecutors and the general public know very little
about the disability. Further, there is a widespread but mistaken
assumption that FASD is limited to children whose mothers were seriously
and repeatedly intoxicated during pregnancies. Damage from even
small quantities of alcohol occurs because of the mother's unique
metabolism and her liver function at the time of the pregnancy.
Many mothers stop drinking only after they know they are pregnant,
but damage to the developing fetus may already have been done. The
Surgeon General's recommendation is that a woman refrains from drinking
during pregnancy and even earlier if she is planning to become pregnant.
police and prosecutors may realize that alcohol use during pregnancy
can cause birth defects, law enforcement officials have any idea
that the birth defect is a pattern of tell-tale facial features:
a smooth philtrum (the space between the nose and upper lip), a
small head, eyes that are short in length, a flat midface and a
thin upper lip.
and some adults with Fetal Alcohol Syndrome may have these distinctive
facial features; however, these facial features are never present
among individuals with Fetal Alcohol Effects. It is important to
note that there are other physical problems impacting on eyes, ears,
bones and heart.
most important disability caused by a mother’s prenatal use of alcohol
and yet invisible to the naked eye - organic brain damage. The organic
brain damage associated with FASD often impairs the individual's
executive brain function - the ability to understand and adapt
to the world.
with FASD frequently have problems planning and organizing information
and daily life, have trouble comprehending the consequences of their
behavior, find they have difficulty controlling impulsive conduct.
These individuals typically have an excessive desire to please others,
an attitude that ma lead them to take (or acquiesce in) actions
that are harmful to their own interests.
those with FASD also have a below average I.Q., but most to not
have a label of mental retardation. Whatever their I.Q., their level
of social functioning is usually substantially lower than other
individuals with the same I.Q. Most individuals with an average
IQ lead productive and organized lives. Individuals who have an
average I.Q. but who also have brain damage caused by alcohol in
utero, often struggle unsuccessfully to deal with the usual demands
characteristics of Fetal Alcohol Spectrum Disorder - invisible to
police in a brief interview -could be quite obvious to a perpetrator
who lived with or knew the victim. A criminal case in which FASD
is present, more often than not, requires special care and handling.
Charges against an individual who has had sexual contact with a
minor would be particularly appropriate where the minor has FASD,
and. resultantly, is less able than others his or her age to resist
sex advances. Although the testimony of the victim with FASD is
important, these victim-witnesses can compromise a case because
they are both credulous and very eager to please. .
victim-witness with Fetal Alcohol Spectrum Disorder may believe
that the correct response must be whatever answer the questioner
may appear to want, whether or not the response is factually true.
The victim-witness with FASD may respond with inaccuracies, not
conscious falsehoods, but simply responses that are the proper answer.
The police and prosecuting attorneys must carefully question such
victims, taking pains not to lead them in a particular direction
but, rather, to let them tell their stories.5 This applies both
in questioning possible crime victims and in preparing witnesses
“..we can envision few
things more certainly beyond one’s control than the drinking habits
of a parent prior to one’s birth.” For the millions of individuals
who already have Fetal Alcohol Syndrome/Effects, it is too late
to protect them from the harm that maternal alcohol caused their
developing brains. But it is still possible to take effective measures
to protect them from criminal abuse.
Recognizing that Crimes Committed with Awareness of the Vulnerability
of the Victim, Impose Harsher Penalties on the Offenders.
resulting collection of behavioral disabilities render individuals
with FASD, both as children and as adults, easy prey for criminal
conduct. They are likely to accept criminal abuse, or to refrain
from complaining to authorities. because they do not fully understand
the inappropriateness of the treatment. or because they want to
avoid displeasing the offender.
child with Fetal Alcohol Spectrum Disorder might easily fail to
grasp the importance of parental admonitions about sexual contacts
with adults, and might fail to recognize the dangerousness of a
situation. Some 72% of adolescents and adults with FAS/FAE have
been physically or sexually abused." Sexual abuse of children
with FASD by adults in their own home is a particularly serious
the criminal was aware that a crime victim was particularly vulnerable
is, under both federal and state law, a well established reason
to impose a more severe sentence. 5 A heavier sentence would be
common, for example, for the mugging of a victim who uses a wheelchair
or other mobility device. Some courts have recognized that harsher
sentencing rules are entirely applicable to crimes against persons
with Fetal Alcohol Spectrum Disorder. 6 More courts should impose
a harsher sentencing rule, and more prosecutors should ask for it.
is not sufficient to prosecute with particular vigor crimes against
individuals with disabilities, including those with FASD. Those
individuals are uniquely vulnerable to criminal abuse, and preventative
measures should be taken to protect them from criminal acts. Because
of their vulnerability to sexual abuse, special care should be taken
in placing children with Fetal Alcohol Syndrome/Fetal Alcohol Effects
in foster care, and in monitoring and children with FAS/FAE who
are within the jurisdiction of government social welfare agencies.
with FAS/FAE, if left to fend for themselves, will too often end
up living on the streets or in other circumstances where they are
likely to be particularly vulnerable to crime. The social services
that many of these adults need, ranging from supported community
living environments to job training, are as important to preventing
victimization as they are to preventing poverty.
Florida Supreme Court observed in its 1994 decision in Di//beck
v. State, (7) "we can envision few things more certainly beyond
one's control than the drinking habits of a parent prior to one's
birth." For the millions of individuals who already have FAS/FAE,
it is too late to protect them from the harm that maternal alcohol
caused their developing brains. But it is still possible to take
effective measures to protect them from criminal abuse.
Scientific Developments Make It Easier to Diagnose FASD
some criminals may quickly recognize the vulnerability of a victim
with FASD, in the past formal diagnosis has often been difficult
in adolescents and adults, except in the case of those with full-blown
FAS facial features. Often there are no obvious facial features,
drinking patterns are not definitive and frequently undocumented,
and neuropsychological testing may be more effective in detecting
the existence of cognitive problems than in explaining their origin.
to a study recently published by a team of researchers at the University
of Washington, it is possible to differentiate FASD-diagnosed brains
from "normal' brains with 80% accuracy using magnetic resonance
(MR) brain images.(8) Abnormalities of the corpus callosum, a cluster
of transverse nerve fibers connecting the two hemispheres of the
brain, underlie the measure permitting this discrimination. The
same measurements can be applied to brain images of other adolescents
and adults, such as those of victims in a forensic context, when
the images are produced using the same protocol as those that were
in the original study. This sharp new quantitative tool, based on
new scientific methods, is available to both prosecuting and defense
Kelly is the Project Director of the FAS/FAE Legal Issues Resource
Center at the University of Washington. For further information
about FAS/FAE or the FAS/FAE Legal Issues Resource Center, visit
the center’s web site at http://depts.washington.edu/fadu/legalissues/
The incidence/prevalence of FASD is approximately 1 in 100.
"Incidence of Fetal Alcohol Syndrome and Prevalence
of AJcohol-Related Neurodevelopmcntal Disorder," Paul
D. Sampson, Ann P. Streissguth, Fred L Bookstein, Ruth E. Little,
Sterling K Clarren, Philippe Dehaene, James W. Hanson and John M.
Graham, Jr., Teratology 56:317-326 (1997).
Surgeon General's Advisory on Alcohol and Pregnancy, FDA Drug Bulletin,
This problem is discussed in Devereux v. Abbey, 263 F. 3d 1070 (9th
Cir. 2001)(en banc), United States v. Allen J., 127 F. 3d 1292 (10th
Cir. 1997), and United States v. Butterfly, 1999 WI.. 369954 (9th
Cir), 1995 WL 729484 (9th Cir.).
Understanding The Occurrence of Secondary Disabilities in
Clients With Fetal Alcohol
(FAS) and Fetal Alcohol Effects (FAE): Final Report 1996, Ann P.
Streissguth, Helen M. Barr, Julia Kogen, Fred L Bookstein.
See e.g., Commonwealth v. Eller; 569 Pa. 622, 807 A. 2d 838 (2002);
Commonwealth v. Crosby. 791 A. 2d 366, 2002 Pa. Super. 10 (2002).
United States v. Lee, 141 F. 3d 1171, 1998 WL 165722 (8thCir.).
643 So. 2d 1027, 1029 (FIa. 1994).
"Geometric Morphometrics of Corpus Callosum And Subcortical
Structures in the Fetal-Alcohol-Affected Brain," Fred L Bookstein,
Paul D. Sampson, Ann P. Streissguth and Paul D. Connor, Teratology
64:4-32 (2001); "Corpus Callosum Shape and Neuropsychological
Deficits in Adult Males With Heavy Fetal Alcohol Exposure,"
Fred L. Bookstein, Ann P. Streissguth, Paul D. Sampson, Paul D.
Connor and Helen M. Barr, Neurolmage 15, 233-251 (2002); "Midline
Corpus Callosum Is A Neuroanatomical Focus of Fetal Alcohol
Damage," Fred L. Bookstein, Paul D. Sampson, Paul.D. Connor
and Ann P. Streissguth, Anatomical Record (New. Anatomist) 269:162174