Indeed, even as we work to deinstitutionalize and decarcerate, we are fearful that “treatment” will be the next colonial control of choice. Indeed, we are already seeing this, as exemplified by what happened in the case of G, the pregnant young woman who was institutionalised for forced treatment.

The focus on FAS/FAE is a gendered, classed and racist in approach and we must venture forth very carefully. Consider for a moment the reality that diagnoses of FAS, FAE, ARND [alcohol-related neurological disorders] et cetera, are most prevalent in countries that have high rates of criminalized indigenous populations. Even although the shopping lists of symptoms or characteristics of foetal alcohol labels overlap significantly with other conditions ranging from inadequate nutrition, oxygen depletion, learning disabilities, attention deficit, et cetera, the labels are persistently utilized in places such as Canada, New Zealand, Australia and the United States. It is not coincidental that these are also countries with high rates of criminalization of racialized indigenous peoples.

In the European Union, on the other hand, this approach is not seen as particularly helpful – they consider the symptoms and impact of other toxins, be they pollution, bad water, insufficient nutrients, lack of prenatal and postnatal supports, accidental brain injuries, lack of oxygen, et cetera, as equally important. After all, despite the rhetoric that it is 100% preventable, since many women do not know they are pregnant before the apparently crucial day 17 of gestation, the only way to make it so would be to not allow any women of child bearing ages drink. Moreover, since we don’t really know what the impact of alcohol is on male sperm, then likely it should also be illegal for men to drink too. Obviously, we all want to limit the impact of alcohol and other toxins on foetal development, but we know that criminalizing behaviour is only likely to end up with a focus on those least able to defend themselves against it and with current access to justice issues being what they are, is likely to continue to result in the disproportionate application of the law against the poorest, racialized women.

How many fewer diagnoses of FAS, FAE, et cetera would there be if that label meant that the recipients thereof could/would not be relegated to the most isolating prison conditions? If such a label meant that someone could not be criminalized but must be found to be in need of community supports because their disability renders them incapable of forming criminal intent, we predict that the diagnoses might virtually evaporate.