The Criminal Justice System's Disparate Treatment of Individuals with Fetal Alcohol Spectrum Disorders in Cases Involving Sexual Activity

Abstract

Individuals with Fetal Alcohol Spectrum Disorders (FASD) are treated differently by the criminal justice system in sex offense prosecutions, depending upon whether they are categorized as victims or perpetrators. The primary and secondary disabilities associated with prenatal alcohol exposure are often taken into consideration when assessing the capacity of a victim to consent to sexual activity, but generally not considered in determining whether a defendant had the mens rea to engage in criminal sexual conduct. This article traces the historical underpinnings of the mens rea requirement in criminal law and discusses its elimination in most prosecutions for statutory rape. The article recommends that additional research be conducted to determine the impact of prenatal alcohol exposure on an individual's capacity to consent to sexual activity. It suggests that fundamental principles of culpability require an examination of how FASD impacts an individual's capacity to engage in meaningful, responsible, decision making about sexual activity before criminal sanctions are imposed.

Keywords: Fetal Alcohol Spectrum Disorders, FASD, Fetal Alcohol Syndrome, FAS, sex offense, consent, mens rea, statutory rape, developmental disabilities