Foetal Alcohol Spectrum Disorder, Community Protection and the Criminal Law

This article reviews the evolving understanding of the neurodevelopmental disability of FASD in the forensic context and the criteria for its diagnosis, an issue that is especially pressing for Indigenous communities in Canada, the United States, Australia and New Zealand. It analyses important legal authorities, emphasising recent case law, dealing with the relationship of FASD to criminal offending and victimisation, including cases relating to fitness for interview, fitness to stand trial, and diminished responsibility, while focussing upon the sentencing of persons with FASD. It particularly draws attention to how the condition has been incorporated into the matrix of factors that affect evaluation of risk, including for young offenders. It discusses culturally informed, trauma-aware measures that are required to inform and guide forensic responses to FASD, so as to maximise effective early intervention, utilise non-carceral sentencing options, and identify creative options for provision of long-term supports for offenders diagnosed with FASD.