Abstract
Alcohol has been widely used in societies for thousands of years so it is not surprising that issues surrounding alcohol have challenged public policy and the legal system for many years. But the interplay between pregnancy, alcohol and the law has only come to the forefront in recent years following the recognition of the existence of the fetal alcohol syndrome (FAS) and fetal alcohol spectrum disorders (FASD) less than a half century ago. In the context of prevention, some communities have enacted ordinances requiring the placing of warning signs informing the public of the risks of drinking in pregnancy at locations associated with alcohol use. A more formidable issue stems from the observation that FASD individuals are over-represented in all court systems as defendants and victims.
The review of criminal cases involving an FASD have been few to date, but even that experience illuminates the challenges that lie ahead in addressing the impact of FASD associated intellectual impairments for achieving appropriate justice. There is a need for statutes directly addressing FASD issues within the society and a model is put forth to aid communities in achieving fair and just outcomes.
Those who don’t know history are doomed to repeat it.
– Edmund Burke
Those who cannot remember the past are condemned to repeat it.
– Santayana (in The Life of Reason, 1905)
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Notes
- 1.
In the mid 1850s, the “McNaughton rule” created a presumption of sanity, unless the defense proved “at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.” The rule remains the standard to determine whether a person shall be held criminally responsible for acts in many states and a variant in other states. The Canadian criminal code is also based on the McNaughton rule.
- 2.
The entire opinion consisted of this paragraph: “Motion of National Organization on Fetal Alcohol Syndrome for leave to file a brief as amicus curiae granted. Motion of Constitution Project for leave to file a brief as amicus curiae granted. Motion of Louisiana Association of Criminal Lawyers for leave to file a brief as amicus curiae granted. Motion of National Center on Domestic and Sexual Violence, et al. for leave to file a brief as amici curiae granted. Petition for writ of certiorari to the Supreme Court of Louisiana denied.”
- 3.
Bloom’s Taxonomy was created under the supervision of Dr. Benjamin Bloom as an organization approach to promote higher forms of thinking, such as analyzing and evaluating concepts, processes, procedures, and principles, rather than just memorization of facts.
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Warren, K.R., Chezem, L.L. (2018). FASD and Justice: An Historical Perspective. In: Jonsson, E., Clarren, S., Binnie, I. (eds) Ethical and Legal Perspectives in Fetal Alcohol Spectrum Disorders (FASD). International Library of Ethics, Law, and the New Medicine, vol 75. Springer, Cham. https://doi.org/10.1007/978-3-319-71755-5_1
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