Courts no place for fetal alcohol victims

When Teina Pora’s appeal was upheld by the Privy Council in 2015, fetal alcohol spectrum disorder (FASD) gained a rare moment in the spotlight. Pora was twice convicted of the rape and murder of Susan Burdett, and it was only after the second conviction that he was diagnosed with FASD.

It was eventually proven that his undiagnosed condition had substantially contributed to the appalling miscarriage of justice which saw Pora imprisoned for 20 years for a crime he didn’t commit. Unfortunately, when justice was finally delivered for Teina Pora, the opportunity to protect other people with FASD from a similar fate was ignored.

The problem, according to advocates and experts in neurodevelopmental science, is that incarceration and punishment simply don’t work for people with FASD. Some say our criminal justice system is set up to fail them.  

The reason is that people who have FASD experience difficulties with all four of the basic assumptions of the law.

The law assumes offenders:

1. Broke the law knowingly with the intention to cause harm
2. Know right from wrong
3. In this knowledge, chose wrong instead of right
4. Have the capacity to participate meaningfully in legal process

FASD brain impairments are characterised by deficits in communication, memory, being able to appreciate another person’s perspective and to recognise emotional states in others. There can also be problems with emotional regulation, attention and the ability to plan and reason.

The comments in Pora’s appeal letter to the Privy Council clearly show how his ability to meaningful participate in the system was severely impaired by his condition. A psychiatrist who assessed him for the appeal said he “had great difficulty in understanding questions put to him and remembering the content of the question when composing his reply” and "he had no demonstrable capacity for abstract thought and a strong tendency to maintain a position even when it was shown to be entirely untenable.” 

Teina Pora is now a household name but unfortunately the lesson unearthed through his experience has simply been buried again - a person who has FASD and encounters the criminal justice system is barely any better off now than Pora was all those years ago.

Last year, highly anticipated changes to the law saw most 17 year olds dealt with in the youth justice system except for those facing certain serious offences. However many of those charges are typical of those for which young people often appear in the youth Court for. Some commentators have said these exemptions are political - allowing the government to appear ‘tough on crime’ while still being able to claim they have acted compassionately towards young offenders.

This has special relevance for people with FASD as research from Australia and Canada suggests 20-30 percent of youth correctional populations have a diagnosis of FASD. There is a lack of quality data on the prevalence of FASD in Aotearoa but researchers believe it could be similarly high. The Youth Court has far more advanced processes than the District Court for identifying and responding appropriately to complex neurodevelopmental and social issues such as FASD.

None of this is a surprise to FASD experts and advocates. The disorder has been severely under-researched. Whānau, service providers and researchers have been advocating for increased funding for years. The $1.6million allocated to the FASD Action Plan has been claimed as insufficient to address the scale of the implications and reflecting a lack of commitment from the Government.

The problem is multi-faceted, according to FASD researcher Dr Andi Crawford.

This leads us back to the criminal justice system. We have seen how people with FASD are likely to fare in the adult courts, and it doesn’t get better once they reach the prisons. A similar paradox occurs during the sentencing process which assumes that offenders:

1. Learn, from the sanctions applied, not to offend again
2. Can be deterred by sentences imposed on other offenders
3. Acknowledge and understand the harm they caused
4. Make amends for it in some way, therefore not repeat their mistakes

“The principles which underpin sentencing in our courts are simply not reasonable for people with FASD,” Crawford told Newsroom. “We might be lacking some data with respect to the epidemiology of FASD but we do know for certain that these principles do not hold true for children and youth with significant difficulty with attention, impulsivity, reasoning and other executive functions.” Dr Crawford says the research shows treating people with neurodisability in a punishment style model will not enable positive change - for the individual or the community.

Dr Nicki Jackson from Alcohol Healthwatch, who has advocated for more compassionate and evidence-based approaches to FASD treatment and services says: “The solutions for youth with FASD who are experiencing difficulties with the law should come from the community, not the courts."

The changes to the Oranga Tamariki Act and Children’s and Young Person’s Wellbeing Act emphasise Youth Court consequences should strengthen the family whānau, hapū and iwi connections. The Act says it is also important to foster family, whānau, hapū and iwi to develop new pathways of dealing with offences and the young person should be kept in the community where possible. Now we just need to apply it to all young people and those adults who function at a much younger age.

“It’s important to emphasise that people who receive a diagnosis of FASD shouldn’t expect a fast-track into the criminal justice system,” says Crawford. “Many people with FASD don’t have any issues with the law. But what we need to see is that the system currently unfairly criminalises people whose problems are often social in nature, and which could be entirely solved through appropriate community-based interventions.”