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A descriptive analysis of sentencing decisions by the Canadian criminal justice system of people with intellectual disabilities convicted with sexual offences
تجزیه و تحلیل توصیفی از تصمیمات مجازات توسط سیستم عدالت کیفری کانادا برای افراد دارای ناتوانی ذهنی محکوم به جرایم جنسی-2020 This study reviews sentencing decisions of people diagnosed with intellectual disabilities who have been convicted of sexual offences by judges in Canada. Given the prevalence of people with intellectual disabilities managed within the criminal justice system (CJS), courts have increasingly been faced with issues concerning appropriate sentencing. In addition, many people with intellectual disabilities have complex social and medical backgrounds that require multidisciplinary perspectives to account for each person’s legal and moral culpability, which in turn influences sentencing decisions, including placement in prisons versus rehabilitation programs. The legal databases Canlii and LexisNexis Quicklaw were used to search full text judgements from Canadian courts for adults (over the age of 18) diagnosed with an intellectual disability and charged with a sexual offence. In total, 61 cases were included within the full-text review. These cases were analyzed based on the accuseds demographics, past social history, past medical history, current diagnoses, past criminal record, current charges, mitigating/aggravating factors, use of a Gladue report, sentence, and other pertinent information that contrib- uted to the final judgement. Recommendations on how to increase the effectiveness of the CJS in trying and sentencing people with intellectual disabilities are made based on the findings of this study. Keywords: Psychiatry | Law | Intellectual Disability | Fetal alcohol spectrum disorder | Sexual offences | riminal justice system | Sentencing |
مقاله انگلیسی |
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Expert evidence in fetal alcohol spectrum disorder cases
شواهد کارشناس در موارد اختلال طیف الکل جنینی-2016 Fetal Alcohol Spectrum Disorder (FASD) is an umbrella term relating to a set of disorders, including Fetal Alcohol Syndrome (FAS), partial Fetal Alcohol Syndrome (pFAS), Alcohol
Related Developmental Disorder (ARND) and Alcohol Related Birth Defects (ARBD). Each disorder
is pervasive and life-long, resulting from prenatal exposure to alcohol (PEA). While the incidence
of FASDs remains debatable, it may well be in the region of 1% of the population in countries
such as Canada, New Zealand and Australia. They have been disproportionately identified in
persons from an indigenous background in a number of countries. In addition, FASDs are present
in significant numbers amongst persons who are charged with criminal offences and who are
sentenced to imprisonment, especially young offenders. Understandably, as FASDs continue to
be attended by a level of diagnostic uncertainty, they have been significantly under-diagnosed.
They can easily be mistaken for other disorders, especially in the context of comorbidities.
However, their relevance in the forensic context in terms of reduced culpability for criminal
offending and problematic capacity to respond to interviewing by persons in authority, such
as police, is significant but in many instances subtle. In addition, the potential for FASDs to
be misinterpreted on the basis of persons with FASDs appearing ‘normal’ is significant. Thus,
mental health professionals who assess persons charged with criminal offenders have an important role in identifying FASD symptomatology and, where necessary, referring such offenders
for specialist assessment. Those who provide FASD assessments to the courts need not only to educate judicial officers about the phenomenology of FASDs but about how in the particular scenario a FASD may have forensic relevance, in the sense of having played a role in the offender’s
criminal offending and in relation to how the offender is likely to fare in a custodial environment. As there are different forms of FASDs and as their symptomatology varies significantly in
nature and severity, it is incumbent upon assessors to provide offender-specific assistance to
courts, sometimes incorporating counter-intuitive information. Judicial officers are increasingly
receiving submissions about FASDs in many countries, especially in respect of offenders from
First Nations. The quality of such evidence has been variable and there have been occasions
when courts have not received the assistance they have required. Some have become experts in
the area; others have little knowledge about the issues. However, international case law, based
upon expert assessments from psychiatrists and psychologists, has evolved substantially since
2000. There is now a significant body of sentencing law, in particular, upon which advocates can
draw and judicial officers can rely, based upon expert opinions provided by mental health assessors, when imposing sentences upon offenders with FASDs. This article reviews important and
illustrative examples of such law from Canada, England, New Zealand and Australia. It argues
that this corpus of legal authority now provides constructive guidance for FASD cases, and that
it should be utilized to enhance forensic FASD assessments and judicial decision-making about
offenders with FASDs.
KEYWORDS: Expert evidence | Brain injury | Developmental delay | Fetal alcohol spectrum disorder | FASD | FAS | Police interviews | Sentencing | Criminal responsibility |
مقاله انگلیسی |