Court Cases on Sexual Offenses
1998 WL 855512 (Conn. Super.)
Court approves termination of the parental rights of the mother, who has FAS.
The mother at age 37 possessed "the distinctive facial abnormalities of the disorder," as well as "congenital neuro-cognitive impairment in her ability to organize events and its impact on the higher cognitive functions such as anticipating and making connections between events."
The mother had since the age of 16 been receiving SSI benefits. "Because of her condition and abilities, [the mother] has only had marginal employment on an intermittent basis during her life." (*1).
There was evidence of a number of incidents of sexual and other abuse of the child involved.
577 N.W. 2d 575, 1998 S.D. 30 (1998)
This opinion contains two detailed and useful descriptions of FAS/FAE.
"Fetal Alcohol Syndrome (FAS) is a pattern of mental and physical defects which develop in some unborn babies when the mother ingests alcohol during pregnancy. Those born with FAS may be seriously handicapped and require a lifetime of special care. Impairments include physical birth defects including mental retardation, growth deficiencies, central nervous system dysfunction, craniofacial abnormalities and behavioral maladjustments. Fetal Alcohol Effect (FAE) is a less severe set of the same symptoms. Experts are not in full agreement on the precise distinctions between FAS and FAE. However, behavioral problems of FAE children can be as severe as those of FAS children. FAS/FAE produces irreversible physical, mental and emotional deficits. Many children with FAS/FAE are not able to understand cause and effect relationships and long-term consequences. In 1991, the Journal of the American Medical Association reported that FAS is the leading known cause of mental retardation. At least 5,000 infants are born each year with FAS, or approximately one of every 750 live births. thirty to forty percent of babies whose mothers drink heavily throughout pregnancy have the syndrome. source: United States Department of Health and Human Services"
577 N.W. 2d at 577 n. 1. It is not correct to say that FAE is a "less severe" version of the FAS symptoms. Some FAS symptoms (by definition) are entirely absent (i.e. certain characteristic facial features), but other primary and secondary disabilities may be the same or worse.
577 N.W. 2d at 577.
Excessiveness and Inequality of Sentencing
Bonner was one of three young men convicted of a minor burglary, involving the theft of some CDs, cash, and two necklaces. The good stolen appear to have been worth less than $100. 577 N.W. 2d at 582. The other defendants (whom, so far as the opinion reflects, did not have FAS) received sentences of a $750 fine and 160 or 180 days in jail with work release. Bonner, who was 19 and pled guilty, was sentenced to 15 years in prison. He had not prior felony record, and only a few lesser misdemeanors. 577 N.W. 2d at 657.
The South Dakota Supreme Court concluded that the sentence was "grossly out of proportion to the severity of the crime." 577 N.W. 2d at 581. It based its decision on the sentences of the co-defendants, the lack of a serious prior record, and the absence of any violence in the crime.
This may be a case in which an FAS/FAE defendant who went along with a crime involving more sophisticated offenders got the heavy sentence, while the other offenders got off fairly easily. That is certainly a pattern seen in other cases.
Limited Mental Capacity
Bonner's attorney argued that the burglary sentence was excessive because of Bonner's "limited intellectual capacity." 577 N.W. 2d at 581. (It is unclear whether the attorney raised only Bonner's low IQ, or whether this is just an infelicitous turn of phrase in the court's opinion). The court explained that such limitations were not usually a defense, but were relevant to culpability and thus to sentencing.
577 N.W. 2d at 581.
Bonner's attorney also objected to the sentence on the ground that Bonner needed treatment that could not be obtained in prison.
577 N.W. 2d at 581. The court did not address this argument.
Bonner also received a 15 year sentence for sexual relations with the 14 year old girl who had persuaded him to come to her hometown for the express purpose of being her boyfriend. In upholding that sentence, the court did not engage in any of the analysis which was used with regard to the burglary sentence. For example, with regard to the burglary sentence, the court stressed that the maximum sentence should be reserved for the most serious combinations of offense and background of the offender. 577 N.W. 2d at 582. But in upholding the maximum sentence possible for the sexual contact charge, the court did not assert that the offense or background were unusually serious, but noted only that "[t]here may be legitimate and compelling reasons . . . why a sentencing court might believe the maximum sentence appropriate." 577 N.W. 2d at 582-83 (Emphasis added).
This appears to be a classic case in which an individual with FAS/FAE repeatedly got in trouble with the law, but too little was done to frame sentences that would provide him with treatment and structure until he got into very serious trouble.
577 N.W. 2d at 577.
577 N.W. 2d at 580-81. This sounds like a decision to impose an exceptionally long sentence precisely because of Bonner's limited capacity, which is precisely the opposite of what the state Supreme Court indicated should be the result of such a limitation.
Bonner had serious difficulties throughout his childhood. He received psychological counseling and was on a regimen of medication to control his behavior. At the age of 17 he finally finished ninth grade, and quit school. He had no significant work experience thereafter.
When Bonner was (apparently) 18, he met a 14 year old girl from another town who told him she was 17. After the girl returned home, she called him every day for a week urging him to come to her town so that they could be boyfriend and girlfriend. "Enraptured, Bonner hastily borrowed money from a friend for a bus ticket," 577 N.W. 2d at 577, and traveled to the girl's town. There he stopped taking his medication, and spent several weeks drinking and partying. During this period he allegedly had sexual intercourse on two occasions with the girl in question.
The police also investigated Bonner with regard to possible sexual contacts with four other girls. There was a rape charge filed with regard to a 13 year old girl, but the only facts in the record consisted of a statement by the girls denying any sexual contact other than a few "hickeys." 577 N.W. 2d at 578.
After Bonner had purchased the bus ticket for the ill fated trip to the girl's hometown, his father attempted to prevent him from leaving.
577 N.W. 2d at 577. So far as appears from the record, nothing was done to alert police in the town to which Bonner was headed. It also appears, despite the three prior minor adult offenses, that Bonner was not on probation and therefore not subject to the control of a probation official in these circumstances.
In sum, when he arrived at the bus terminal, Bonner was a disabled and disturbed young man with a long history of minor offenses who was clearly headed for more serious trouble. When his father attempted to intervene, the police responded by facilitating Bonner's departure--and the offenses that inevitably followed. Although it is unclear how much police knew at the time, the events in this case illustrate how police understanding of FAS/FAE could be important in preventing criminal offenses.
882 So.2d 969 (Fla. 2004)
Dillbeck was convicted of first-degree murder, armed robbery, and armed burglary. In connection with Dillbeck's sentencing, the trial court considered various statutory and non-statutory mitigating circumstance, including that Dillbeck has FAE and that his capacity to conform his conduct to the requirements of the law was substantially impaired, but also found that there were numerous aggravating circumstances. Following the jury's recommendation, the trial judge sentenced Dillbeck to death. Dillbeck's arguments on appeal included ineffective assistance of counsel, claiming, among other things, that his attorney failed to request a PET scan. (The Court's opinion does not indicate whether the request for a PET scan was related to the fact that Dillbeck has FAE.) The circuit court denied relief, and Dillbeck appealed, seeking a writ of habeas corpus. Dillbeck's petition did not appeal the claim that counsel should have requested a PET scan, so although the court remanded the case to the circuit court to enter further findings with respect to Dillbeck's claims, it held that the circuit court need not address Dillbeck's claim with respect to the failure to request a PET scan.
67 P. 3d 518 (Wa. Ct. App. 2003)
E.A.J., then age 13, was charged with using force to sexually assault a 5 year old girl who knew and trusted him. Dr. Robin Ladue testified that E.A.J.'s family history, intellectual ability and behavior indicated that he might have FAS or FAE. 67 P. 2d at 523. She also testified that he needed prolonged treatment, and recommended that E.A.J. remain in the community during treatment, rather than being jailed.
The appeal concerned an unrelated issue about the interpretation of a plea bargain that had been entered into between E.A.J. and the prosecution.
2003 WL 2240513 (Cal. App. 5th)
This is a juvenile proceeding against Michael A., then 13 or 14. At the request of the defense, the court granted a continuance so that a psychologist could determine if Michael was competent to understand the proceedings and cooperate with counsel.
The psychologist concluded that there was a gross inability to assist counsel. The bases of the conclusion included the fact that Michael had been diagnosed with FAS.
The trial court, without holding a hearing, ruled that Michael was competent to stand trial. The appellate court reversed, holding that the trial court was required to hold a hearing on Michael's competency to stand trial.
2003 WL 23096999 (Cal. App. 3 Dist.)
The opinion describes a long history of sexual offenses or misconduct beginning when Michael F. was three, and continuing until the current proceeding, which occurred when he was 17.
35 F. Supp. 2d 34 (D.Mass. 1999)
Shaun D. was initially a student in the Mohawk Trail Regional School District. He had a number of behavioral problems, including FAS, post-traumatic stress disorder, and pedophilia. Because of those problems Shaun was eligible for special education under the federal Individuals with Disabilities Education Act. For a number of years Shaun was part of a specially structured education program in the Mohawk Trail schools, including constant line-of-sight adult supervision.
Shaun's out-of-school behavior deteriorated, and he was placed in the Whitney Academy, a residential school for mentally retarded children with sexually offending behavior. The question in the case was whether the Mohawk Trail School District was obligated to pay the costs of the Whitney Academy. The School District argued that the primary reason that Shaun was there, his sexually offending conduct, was not an educational need, and that the IDEA did not require that placement. The court held that treatment of that conduct was sufficiently connected with educational programs that the School District was financially responsible for the cost of the Academy.
1995 WL 562253 (Del. Super.)
Morris, then age 23, was convicted of sexually abusing an 11 year old girl and an 8 year old boy.
In imposing a lengthy sentence, the court expressed concern that he would be a "sexual predator" when he was released from custody. The court denied a motion to reduce the sentence, explaining that the motion "does not begin to address Defendant's life-long problems. Nor does it provide a plan for Defendant's future, commensurate with the level of his problems and the risk he poses to the community." 1995 WL 562253 at *1. This appears to suggest that the court would have been willing to consider a shorter period of imprisonment if the defense had proposed some plan for treatment and effective monitoring.
The court also expressed concern about the failure of the state to help Morris earlier in his life.
1995 WL 562253 at *1.
This case appears to illustrate how a state's failure to deal with the problems of FAS in childhood can cause serious harms once the individual reaches adulthood.
1999 WL 305229 (Wa. App. 2d)
Upon completion of Nicholas' term of confinement for assault with sexual motivation, the state brought this action to have Nicholas determined to be a sexually violent predator and to have him committed to the custody of the Department of Social and Health Services until he was "so changed that [Nicholas] is safe to be conditionally released to a less restrictive alterative or unconditionally discharged." The trial court ordered that Nicholas be so detained, and the appellate court affirmed.
The appellate court's opinion states in part:
1999 WL 305229 at *3.
 Y.J. No. 57 (Yukon Territorial Court)
Full text available on Westlaw, 1999 Carswell Yukon 99  Y.J. 57.
Par. 4. During the seven years that followed T.J. was for a time confined to juvenile institutions, and then returned to the custody of his adoptive mother. There were no further complaints of sexual misbehavior.
Also, see paragraph 12 quoted below.
Symptoms of FAS/FAE
10--. . . FAS is the leading cause of mental retardation in North America . . . . [T]he intellectual impairment is not a matter of developmental delay but reflective of the underlying, permanent brain damage suffered by the FAS patient while in utero.
11--Accompanying the mental deficits is a variety of behavioural and developmental deficiencies. The cognitive processes that most people use to regulate their conduct and to adapt to their social environment are located primarily in the anterior frontal lobe of the brain. The effect of alcohol on the fetal brain is such that this region does not develop sufficiently to allow the FAS individual to appropriately control his or her actions. As such, FAS patients tend to be impulsive, uninhibited, and fearless. They often display poor judgment and are easily distracted. Difficulties in perceiving social cues and a lack of sensitive often cause interpersonal problems.
12--FAS patients have difficulties linking events with their resulting consequences. These consequences include both the physical, e.g. getting burned by a hot stove, and the punitive, e.g. being sent to jail for committing a crime. Because of this, it is difficult for these individuals to learn from their mistakes. Lacking sufficient cognizance of the threat or fear of consequences, the FAS patient is less likely to control his or her impulsive behaviour. Similarly, FAS individuals have trouble comprehending that their behavior can affect others. As such, they are unlikely to show true remorse or to take responsibility for their actions. . . .
14--FAS patients tend to come from unstable family situations. Nearly one-third of FAS children never live with their biological mothers. They are either given up for adoption at birth or abandoned at the hospital. A recent study showed that, on average, an FAS child will have five different principal residences. . . .
16--By the time the FAS child reaches adolescence, school has become a significant source of frustration. The inability to master basic skills in earlier grades makes the ordinary tasks required at the high school level essentially impossible for FAS youth. This, coupled with the on-going issues of social maladaptation and lack of recognition of consequences, makes for an inhospitable learning situation predicated largely on failure. A recent study found that 60% of FAS youth are suspended from, expelled from, or dropped out of school. . . .
17--Troubles at school tend to diminish the FAS youth's self esteem and to alienate him or her from the main peer group. The highly social FAS youth is then prone to seek out friendship and acceptance with 'the wrong crowd.' . . .
18--Individuals with FAS experience high rates of offending. One study showed that 61% of FAS adolescents had run afoul of the law at least once. Most frequently, this involves shoplifting and theft. A recent study in Saskatchewan estimates that as many half the young offenders appearing in provincial court suffer from FAS. the study found that FAS offenders were rarely motivated by malice but were more likely to have been exploited by smarter, more savvy criminals. Ironically, FAS offenders tend to make model prisoners because they respond well to the structure environment. . . .
19--As adults, a significant number of those patients with severe FAS will never be able to live independently or obtain gainful employment. Those who possess sufficient skills to obtain employment are at greater risk of termination for unacceptable job performance, inattention to detail, and/or absenteeism. . . .
20--FAS children are very demanding and needy in their school environments and, as mentioned earlier, this tends to result in school suspension and expulsion. Within the child welfare system, FAS children utilize a disproportionate share of resources and are often shuffled over to the Young Offenders system. As adults they often end up living on the street or in jail due to a dea[r]th of homes which provide semi-independent living."
Paragraph 9 is incorrect in one detail. FAS is not at the more severe end of the disabilities caused by maternal use of alcohol; rather, FAS is associated with affected individuals who have certain facial abnormalities. Among the entire population with FAS or FAE, the cognitive impairments among those with FAS is not significantly higher than among those with FAE.
2001 WL 15926 (Wis. App.)
Storzer was convicted of sexually assaulting his roommate at the Eau Clair Academy, a private Wisconsin treatment facility for adolescents with behavioral problems. At the time Storzer was 16 years old, and his roommate was 12. Storzer apparently had a record of inappropriate sexual conduct with other children. Storzer had an IQ of 79, and the mental abilities of an 11 year old.
The court sentenced Storzer to 20 years in prison. It held both that the record did not show that Storzer was a pedophile, and that he presented a danger to young children if released to the community.
The facts stated in this opinion suggest that a 16 year old offender with a history of inappropriate sexual conduct with children was placed in a room with a 12 year old roommate. It is unclear why Storzer was at Eau Claire in the first place, or how much Eau Claire Academy officials knew about his history and problems.
222 Mich. App. 160, 564 N.W. 2d 903 (Ct. App. 1997)
W. pled nolo contendere to several counts of unlawful sexual contact with a child.
The sentencing judge was aware that W. had FAS. At the initial sentencing hearing, W.'s defense counsel had and referred to several psychological examinations, but evidently did not actually provide the court with copies of at least some of them. The judge initially sentenced W. to 2-15 years in prison.
Thirteen days later, W.'s attorney filed a motion to alter the sentence, and this time attached the psychologist reports that had not been provided earlier. Two weeks later the trial judge granted the motion, and reduced the sentence to 90 days in jail and 5 years of probation. the judge ordered that W. spend 150 days on the "tether program" and undergo outpatient therapy. 222 Mich. App. at 182-83.
The prosecution appealed. The appellate court held that under Michigan law the trial judge had no authority to modify his original 2-15 year sentence.
This case is important, not because of this legal issue, but because it illustrates the impact at sentencing of a more detailed exposition of the significance of FAS/FAE. The trial judge concluded that that exposition warranted a far lower sentence; the appellate court did not disagree, but held only that the trial judge could not change his mind after he handed down the first sentence.
The dissenting opinion in the appellate court quoted extensively from the materials that persuaded the trial judge to impose the lower sentence (later overturned solely on procedural grounds).
The materials on which the trial judge relied in reducing the sentence included in particular an affidavit from Dr. Ann Streissguth. That affidavit identified several distinct reasons why imprisonment was an inappropriate sentence.
(2) "Rehabilitation will be virtually impossible because if therapy is available at all, it would most likely be cognitive-type group therapy. This would almost certainly have little positive impact on Mr. W. and could actually be counterproductive. For an FAS individual, traditional group therapy generally causes additional confusion in a setting which will already be virtually impossible for him to function in." 564 N.W. 2d at 912.
(3) "Persons with FAS become targets for mental, physical, and sexual victimization within the prison population." 564 N.W. 2d at 912.
(4) Despite the FAS, "[W. has] achieved nearly unprecedented life goals such as his regular job as a dishwasher, no previous court intervention, and no observable secondary psychological problems. . . . If he survives prison, . . . the qualities which have caused him to be an example of how well FAS children can function if raised in a structured and affectionate environment, will be lost or severely minimized." 564 N.W. 2d at 912.
(5) "[I]t is very likely that he will learn and internalize deviant sexual behaviors in the prison setting. Incarcerating Mr. W. makes it much more probable that he will be a repeat sex offender than placing him back into his parents' home." 564 N.W. 2d at 912.
There was a sharp disagreement between state probation officials about the appropriate sentence. The probation officer who actually interviewed W. recommended no prison time at all. Another more senior officer urged a sentence of 3 1/2 years, insisting that W. was a pedophile. 564 N.W. 2d at 911.
Two experts disagreed with that characterization. Dr. Streissguth concluded that the "clinical diagnosis of pedophilia is not likely to be supportable in [W.'s] case, given his level and mode of intellectual functioning." 564 N.W. 2d at 912.
Dr. Steven Miller concluded that W. did not have "sufficient emotional maturity and mental ability to be diagnosed as a pedophile." 564 N.W. 2d at 913. Both Streissguth and Miller concluded that the particular type of activity for which W. had been convicted did not support a diagnosis of pedophilia. 564 N.W. 2d at 912-13; see 564 N.W. 2d at 904-05 and n. 1 (describing conduct).
Dr. Miller concluded that "the organic brain damage caused by Fetal Alcohol syndrome excludes the possibility of . . . premeditation and planning." 564 N.W. 2d at 182. This would be important in a case in which an individual with FAS/FAE was charged with a crime in which premeditation was an element.