Fetal Alcohol Spectrum Disorder

Hon. Rachel L. Kretser (Ret.)
Chair, Third Judicial District Gender Fairness Committee, WBASNY Past President

New York’s judges and attorneys are literally staring in the face of a worrisome medical, sociological, psychological, and legal problem every single day: Fetal Alcohol Syndrome (FAS)/ Fetal Alcohol Spectrum Disorder (FASD). Unfortunately, those of us in the courts, like most of us in society, have no idea what we are seeing. The Third Judicial District Gender Fairness Committee, which I am honored to chair, is trying to change that.

On Oct. 26, we presented an extraordinary CLE (with WBASNY as one of our co-sponsors) that included riveting presentations by a physician in Chicago, a psychologist in Rochester, a public defender in Los Angeles, judges in the Third Judicial District, advocates in New York State and two adoptive parents of youths afflicted with fetal alcohol syndrome (one of them a New York State Supreme Court Justice).  The program was very well received, with 638 attorneys and judges from around the world in attendance!

We learned that individuals with FASD have a higher rate of incarceration and arrest, and roughly 70 percent of the children in foster care are affected by prenatal alcohol exposure. We heard that roughly 10 percent of the individuals with FAS have telltale facial features—thin upper lip, upturned nose, flat nasal bridge, small head circumference.

We were informed that people with prenatal, alcohol-related brain damage often have a relatively high IQ, counterintuitively coupled with poor math and language skills. Imaging routinely shows smaller than normal brains with obvious defects in the frontal lobe and damage to the parts of the brain that regulate muscle activity and memory, as well as the corpus callosum—the information sharing highway between the right and left hemispheres.

Experts tell us that individuals with FAS/ FASD often have terrible impulse control and their adaptive behavior skills are exceedingly poor. They tend to confess to crimes they did not commit because they want to please. They’re easily manipulated and exploited. They simply don’t understand consequences, do not learn from their mistakes and cannot be “taught a lesson.” As adults, they are highly susceptible to abuse, including domestic violence, and equally likely to engage in violence.

Although the American Bar Association passed a resolution back in 2012 urging all attorneys and judges to receive training to help identify and respond effectively to individuals on the fetal alcohol spectrum, it remains a below-the-radar and often overlooked problem in our courts. It’s vital that those of us in the justice system address the issue squarely and knowledgeably.

There are no easy answers to this problem, but it begins with awareness—awareness of attorneys who represent children or individuals who may well be inflicted with FAS/FASD and awareness of judges who, in appropriate cases, can push the issue by asking: Has this individual before me been screened for possible FAS/FASD?

Much of the Oct. 26 program was recorded and is accessible here: https://www.nycourts.gov/ip/justiceforchildren/youth.shtml

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