Identifying the Issues: Victim Services’ Workers experiences working with victims with Fetal Alcohol Spectrum Disorder

2. Background


2. Background

2.1 Fetal Alcohol Spectrum Disorder (FASD)

Fetal Alcohol Spectrum Disorder is the term used to describe the continuum of effects that include Fetal Alcohol Syndrome (FAS), partial Fetal Alcohol Syndrome (pFAS), and Alcohol-Related Neurodevelopmental Disorder (ARND). The degree to which prenatal exposure to alcohol damages the individual depends on numerous factors including genetics, maternal characteristics, nutrition, environment, developmental timing, reactions to other drugs and duration and extent of alcohol exposure.

FASD cannot be identified through a blood test. According to the Canadian Guidelines for Diagnosis of FASD (Chudley et al. 2005), a diagnosis of FAS, pFAS, or ARND should be conducted by a physician (geneticist or paediatrician) in collaboration with a psychologist, a speech language pathologist and someone to confirm maternal alcohol history during pregnancy.

Characteristics of FAS and pFAS include:

As described by Chudley et al. 2005 and Lang 2006, for a diagnosis of FAS, pFAS, or ARND, individuals must have impaired functioning in three of the ten brain domains:

Individuals with ARND have no physical characteristics (facial anomalies or growth retardation). An assessment of brain functioning is completed with a series of neuropsychological tests and also by examining school, hospital, or social services records collected on the individual. With the exception of FAS, a diagnosis within the spectrum of FASD requires confirmation from a reliable source that the birth mother drank alcohol during pregnancy.

FAS was first identified in the early 1970s. There remains a lack of awareness of the disorder within the Canadian medical profession, as well as a paucity of FASD diagnostic services available. In Canada, there is no national data available on the prevalence of FASD, but it is considered one of the leading causes of mental retardation and developmental disability in Canada (Chudley et al. 2005). FASD is highly under-diagnosed among the general Canadian population (Clarren 2008).

Although some individuals with FASD have above average intelligence, research has suggested that about half of individuals with FASD have mental retardation and the remainder generally have below average to average intelligence (Alberta Learning 2004; Streissguth, Clarren, and Jones 1985).It has been reported that average academic functioning for individuals with FASD (including adults) is at the second to fourth grade level (Streissguth and Kanter 1997).

Cognitive and behavioural characteristics associated with FASD vary depending on the parts of the brain affected. FASD affects every individual differently. As highlighted by Streissguth et al. 1999 and Streissguth and Kanter 1997, some characteristics of FASD can include:

Other characteristics of FASD can include difficulties with:

In addition to the cognitive and behavioural characteristics associated with FASD, individuals with FASD often develop other problems as they become adolescents and adults. “Secondary disabilities” is a term coined by Ann Streissguth, one of the leaders in FASD research to describe the non-organic problems that occur as an individual with FASD attempts to cope with daily living (Streissguth 1997). These problems can include employment difficulties, homelessness, and trouble with the law. Many individuals with FASD have substance abuse problems and mental health diagnoses, such as depression, anxiety, or Attention Deficit Hyperactivity Disorder (ADHD). Secondary disabilities are very prevalent among individuals with FASD, especially among individuals who have no family or community support systems.   

Based on anecdotal evidence, victims of crime who have FASD appear to be at risk of coming into repeated contact with the criminal justice system (Conry and Fast 2000; Fraser 2008; Vitale Cox 2005). The prevalence of FASD among victims and witnesses of crime is unknown, but published Canadian caselaw demonstrates that issues related to victims and witnesses who have FASD have been raised during criminal court proceedings, and notably at sentencing.

2.2 Caselaw and FASD

Although published caselaw is not representative, an examination of caselaw was included to examine the issues that were brought to the court in cases where the victim or witness had FASD. A Quick Law search was conducted in April 2009 which resulted in 561 hits where ‘fetal alcohol’ or ‘alcohol related neurodevelopmental disorder’ was mentioned in published Canadian family, civil, and criminal court cases. All criminal cases were reviewed to determine how many included victims or witnesses with FASD. Most of the criminal cases involving FASD were for instances where the offender had FASD.

There were 24 instances, representing 20 different criminal cases where the victim or witness was reported to have FASD (both with and without a formal diagnosis). Seven of the reported cases were from Ontario, four were from the Yukon Territory, two were from British Columbia, and one case was reported in each of Manitoba, Saskatchewan, Alberta, the Northwest Territories, and Newfoundland. There has been a notable increase over time in Canadian cases where FASD is mentioned (McDonald et al. 2009; Roach and Bailey, in press).

In all of the instances where the victim or witness had FASD, the court was aware of the limitations associated with this disorder. The issues that were brought to the court related to the credibility of victims and witnesses’ testimony and whether the vulnerability of the victim with FASD was considered an aggravating factor at sentencing. Anecdotal information suggests that courts would not be receptive to victims who did not have an official FASD diagnosis, but caselaw shows that, in some instances, courts have been receptive to taking FASD into consideration without having a formal diagnosis of FASD. Interestingly, as described by Roach and Bailey (in press), the social worker, on behalf of the victim in R. v. C.M.S. was permitted to prepare the Victim Impact Statement. This was accepted by the judge as being applicable under s. 722 (4) of the Criminal Code for circumstances where the victim is incapable of making a statement.

2.3 Data on Victims with Disabilities

In Canada, crime data is collected through two main sources – police-reported data and self-reported victimization. Since not all crimes are reported to the police,[1] self-reported surveys such as the General Social Survey (GSS) on Victimization, which is currently conducted every five years,[2] provide a more comprehensive picture of victimization in the country. As well as these national data collection projects, research is being undertaken at local levels which focus on particular populations.

A recent report from Statistics Canada (Perreault 2009) examines data from the 2004 GSS on Victimization and the 2006 Participation and Activity Limitation Survey (PALS). The report notes that in 2004, rates of violent victimization were two times higher for persons with activity limitations[3] than for persons without such limitations. Almost two thirds (65%) of violent crimes against persons with activity limitations were committed by a person known to the victim. Furthermore, the personal victimization[4] rate for persons with mental or behavioural problems was four times higher than the Canadian average. We also know that in 2004 persons with activity limitations were two to three times more likely to be victims of sexual violence, be beaten, struck or threatened with a weapon by a spouse.

The data in the Statistics Canada report is limited inasmuch as many persons with disabilities may be living in institutions, or in community-assisted living situations, and therefore would not be included in the GSS sample. The data confirm what other studies have reported - that persons with disabilities have higher rates of violent victimization than the general population (see for example Office for Victims of Crime 2008; Petersilia, 2009).

2.4 Victim Services in Canada

The Victim Services Survey 2005/06 (Brzozowski 2007) undertaken by Statistics Canada provides a good overview of the services offered to victims of crime by organization. Each province and territory in Canada provides assistance to victims of crime. Service delivery varies considerably between and within jurisdictions. For example, community-based services, such as sexual assault centres, are located outside of the formal criminal justice system, and receive their funding from a variety sources. Police-based services, on the other hand, are affiliated with police services and provide services in police-related matters. System-based services are those that are located within the structure of the criminal justice system and often, but not always, provide assistance to victims throughout the process (from police contact through the courts).

Models of victim services delivery vary depending on whether full-time, paid workers are delivering the services, whether volunteers are used, or a combination of both. Training requirements, qualifications, and remuneration all vary considerably across Canada. Particular issues, such as recruitment and retention, are noted in rural and remote communities. A study on the professionalization of victim services workers examines many of these issues (McDonald 2007).

The Victim Services Survey found that in 2005/06, over 400,000 people sought assistance from the 589 agencies which provided data (Brzozowski 2007). More than one fifth (22%) of those agencies provided specific programs for persons with mental disabilities, and more than three-quarters of agencies (81%) reported that they were able to provide services to persons with mental health issues. Moreover, it was found that agencies provide a range of services to accommodate the various needs of victims of crime, and also use networks of referrals to ensure that victims get the assistance they need on all issues, whether it is housing, health, or social assistance.

The federal government shares responsibility with the provinces and territories to respond to the needs of victims of crime. The federal government launched the Victims of Crime Initiative in response to the 1998 report by the Standing Committee on Justice and Human Rights, Victims’ Rights – A Voice Not a Veto[5]. This initiative is in its second five-year term, and is managed through the Policy Centre for Victim Issues (PCVI) at the Department of Justice. The initiative has played a key leadership role in the following areas:

As described in Figure 1, the provincial and territorial governments are responsible for delivering victim services to victims of crime in their respective jurisdictions. Governments at both the federal and provincial/territorial levels actively worked together to develop the Canadian Statement of Basic Principles of Justice for Victims of Crime.[6] These principles laid the foundation for how victims are to be treated within the Canadian criminal justice system and as such, provide the basic framework for the delivery of victim services.

The great variance in service delivery models between and within jurisdictions, as well as different levels of resources, means that there are no truly national standards or unified sets of rules governing victim services. As a result, victim services’ are more developed in certain areas than in others, and in some places they are virtually non-existent.

Figure 1. Federal, Provincial and Territorial key areas of responsibility for victim issues
Jurisdiction Main responsibilities
Federal Government
  • Enacting criminal law ( Criminal Code, Youth Criminal Justice Act, Corrections and Conditional Release Act )
  • Correctional Services Canada and National Parole Board provide information and a role for victims through the Corrections and Conditional Release Act.
  • Research
  • Encouraging program development through project funding and public information
  • Law reform and policy development
  • Evaluation and monitoring of national programs and Criminal Code amendments
  • Prosecution of Criminal Code (and other federal) offences in the Territories as well as drug offences in Canada generally
Provinces and Territories
  • Enforcing the law, prosecuting offences and administering justice *
  • Delivery of victim services
  • Victim-related legislation (may include principles, administration of a Victims Fund, criminal injuries compensation, surcharge on provincial offences, service standards; notification of offender release, safety)
  • Development and administration of special projects/programs to respond to victim issues through grants and contributions (this includes public awareness)
  • Evaluation and monitoring of jurisdiction programs, services, and delivery models
  • Research 

* Note that the Public Prosecutions Service of Canada (PPSC) has responsibility for the prosecution of all federal offences, including Criminal Code offences, in the three Territories. The PPSC and the Policy Centre for Victim Issues, Justice Canada provide funding for the delivery of Crown-based victim services’ in the three Territories. The delivery of victim services’ is under provincial jurisdiction in the provinces.

In Canada, there are provisions in the Criminal Code that protects witnesses with physical or mental disabilities. These provisions are referred to as “testimonial aids”[7], and can include the following:

The judge has the final decision regarding whether or not a testimonial aid can be used. Use of testimonial aids is not common for vulnerable adults (Bala et al. forthcoming) and there is no empirical evidence on the use of testimonial aids for adults with disabilities.