Fetal alcohol spectrum disorder: Can diminished responsibility diminish criminal behaviour?

Abstract

This text examines how current scientific knowledge has the potential of fulfilling one of the major functions of the criminal justice system. Scientific knowledge should be used to ensure that the criminal justice system's functioning results in maximizing societal protection and crime reduction. Abnormal states of the mind contribute to criminal behaviour and are considered in exculpatory defences. The failure of the long standing insanity defence and its utility among cognitively impaired offenders, provided impetus to this work. In estimating the success rates (or lack thereof) of raised defences for the cases of the ‘invisible disorder’, fetal alcohol spectrum disorder (FASD), coming before the Canadian Courts, we sought to expound on the reasons, from knowledge and pragmatic perspectives. We propose that a diminished responsibility defence and verdict that recognizes the ‘grey zone’ between ‘knowing’ and ‘not knowing’ based on neurocognitive disparities in FASD serves the individual, legal system and the society better than the current practice.