Using PTSD as a Legal Defense Dissertation Chapter Example


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Using of PTSD

Ann Auberry highlighted the prevalence of PTSD among veterans in criminal proceedings. Veterans that face extreme measures during their stay in war-stuck countries have PTSD. The slight violation and other crimes shown by veterans are defended by using PTSD as an insanity defense, unconsciousness, diminished capacity, self defence and as a mitigating factor in sentence. For instance, Joshua Stepp slapped face of his 10-month-old baby and stuffed her throat with wet tissue paper which eventually resulted in baby’s death.Such actions are defended by the presence of PTSD since terrifying events of Afghanistan or Iraq must have left trails on them which forced veterans to take such extreme actions. Joshua believes due to his PTSD, he was unable to control his actions which caused the death of baby.Various other cases have been reported in the courts that involve the extreme violent behaviors exhibited by the veterans. During the war those who served the Vietnam armed forces and survived the traumatic Vietnam War were termed as Vietnam veterans. Vietnam veterans in 1980s were reported to have PTSD due to the exposure to traumatic events and criminal activities.In 2014, there were around 2.7 million veterans of Iraq and Afghanistan in the United States.Even after years, veterans are seen using PTSD as an excuse in defending their criminal cases in courts. Also, more than 17,000 have been diagnosed to have PTSD in many criminal cases.As a consequence of post 9/11, more veterans have been associated with PTSD.UK Trauma group handled traumatic events in the UK during 1980s which generated higher emotional reactions.Incidents such as Bradford football stadium fire, the sinking of the Herald of Free Enterprise ferry and the King’s Cross fire were the main reasons behind the PTSD in the UK during 1980s.

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PTSD is used as an excuse in criminal law by different states across the world. Especially, veterans that have dealt with consequences of war use PTSD as an excuse to support their cases.For instance, in the case State of New Jersey v Cocuzza, Mr. Cocuzza used PTSD as insanity defense and the court decided that the former Vietnam veteran was not guilty because of PTSD. The court finds it difficult to consummate the specific intent to kill someone in case of severe PTSD. Hence, the courts must consider various elements and aspects while considering the cases of individuals suffering from PTSD who present PTSD as an excuse.

Normally, veterans suffering from PTSD find it difficult to cope with the environment due to severe anxiety and panic attacks.Usually veterans of post 9/11 suffering from PTSD use the disease as a defense to excuse themselves. Also, PTSD had been used by many veterans that faced consequences of war, as a ground for criminal defenses including insanity, unconsciousness, diminished capacity and self-defense. Veterans who use PTSD as legal defense in cases have received a varied treatment in courts. Courts have decided in the favor of veterans with PTSD. There is an extensive network throughout the US that is reaching out to the veterans and other people that have PTSD. The United States courts have treated veterans with PTSD on lighter note since it is believed that PTSD forms the structure for insanity. In addition, it has been observed that many veterans in the United States use PTSD as a legal defense in criminal cases. Many veterans that come back from Iraq or Afghanistan suffer from PTSD and commit crimes where they use PTSD as a defense to justify their actions. Needless to say PTSD is misused by many veterans as a defense in criminal law.

PTSD and Insanity Claims

In the United States, PTSD is considered as basis of insanity defense in jurisdictions, whereas an opposition and solid evidence is required by the UK courts. In England and Wales, the insanity test is considered on the basis of M’Naghten rule. In the United States, insanity defense is considered according to the policies and penal code considered by different states. For instance, some states in America consider the insanity defense based on American Law Institute Model Penal Code, whereas some states consider M’Naghten rule.

Heads used PTSD as an integral part of insanity defense while defending in the judicial court. Insanity defense and PTSD are used together while defending an individual in judicial system.Moreover, it is safe to consummate that a person with PTSD is reported to be insane and not found guilty. In criminal cases, veterans suffering from PTSD are claimed to be insane and PTSD is used as an integral part of insanity defense, during the Vietnam War many traumatic events triggered PTSD which defendants and lawyers used in the courts.

In a research study by Omri Berger, Dale E. McNiel and Renee L. Binder, it has been explained prior to the PTSD to be part of official legal defense; traumatic neurosis of war was used as basis of criminal defense.The first Diagnostic and Statistical Manual of Mental Disorders (DSM) included gross stress reaction as a diagnosis.This type of reaction was alleged to occur among military personnel who experienced combat, but was claimed to disappear after leaving the combat situation. Studies of veterans of the Second World War and the Korean War, however, revealed that such symptoms did not disappear but would persist for months or even years.Yet, it was not until after the Vietnam War that Post Traumatic Stress Disorder became described as a mental disorder and provided an avenue for insanity defenses. The American Psychiatric Association(APA) lists the diagnostic criteria for PTSD in the DSM.Using the listed criteria in diagnosing patients with PTSD, the APA determined that eight percent of the population in the United States suffers from PTSD and will have such disease for a lifetime. The majority of these individuals are those who served in combat in the military.

Prior to the inclusion of PTSD in the DSM, however, traumatic stress disorders were used as a defense for insanity in cases. Veterans from the Vietnam War with PTSD who found themselves convicted of a crime, would rely on traumatic stress disorder for their defense. In Houston v State of Alaska, the defendant raised traumatic neurosis of war as a defense and the court of appeals found evidence supporting the defense of insanity.After PTSD was incorporated into the DSM as a traumatic stress disorder, PTSD began to be used by itself as a successful insanity defense. In the first five years after the inclusion of PTSD in the DSM, more than two hundred Vietnam veterans used the defense to obtain acquittals, lighter sentences or treatment as a sentence instead of jail time.

In 1980, Post-traumatic stress disorder officially was made part of criminal defense. Due to PTSD among veterans, it is expected from the courts to grant them punishments or treatments different from other criminal cases. PTSD was introduced and became a part of Diagnostic and Statistical Manual of Mental Disorders in 1980 by the American Psychiatry Association.Insanity defense is considered as one of the most important premises of the criminal law which is claimed by defendants.Later on PTSD just not only played defence role, but veterans used it as an insanity claim to receive mild punishment from the courts. For instance, George Porter a Korean War veteran was sentenced to death, but after the diagnosis of PTSD, the Supreme Court overturned the sentence. Hence, PTSD also plays a role of mitigating factor.In the procedure of using PTSD as a legal defense, courts lessened the punishments or decision was made in the favor of an individual suffering from the disease. Moreover, PTSD also plays an essential role in mitigating the punishment since it is part of insanity claim in the United States. The main advantage that a defendant receives by using insanity defense is the lenient punishment rather than death sentence. In both states, i.e. US and UK defendants using PTSD as insanity defense have the advantage of escaping death penalty. Another advantage of insanity defense is that it creates an immediate environment of guilt where the defendant admits that the crime did happen, but he did not commit it intentionally. Moreover, the disadvantages of PTSD as insanity defense are the misuse of the claim and proving insanity defense to be the correct claim is very hard.One of the cons of insanity claim as defense is that it is not accepted by many jurisdictions in the courts of the US and the UK. In case of person fabricating or making false claims of being insane faces severe treatment from the court. There is an organization in the UK by the name of PTSD UK that deals with the veterans and many other that have PTSD. Also, PTSD UK is involved in creating awareness among veterans that PTSD through help can be reduced to greater extent.

A person suffering from PTSD normally finds it difficult and loses control of actions which leads to serious repercussions. Since judicial system is aware of PTSD as part of insanity and other serious symptoms such as unconsciousness or anxiety tends to provide mixed treatment. Other than war syndrome, battered wife syndrome and battered child syndrome are also considered by judicial system as legal defenses in the United States. However, in the beginning PTSD was misused as a legal defense. Also, there were incidents where PTSD was allegedly and fabricated used as legal defense. Moreover, over the time insanity defense grounded on PTSD was justified and later introduced permanently as a part of criminal defense in courts. PTSD along with dissociative flashbacks, hyper-arousal symptoms, survivor guilt, and sensation-seeking behaviors has been used as basis of insanity defense in various courts. Moreover, people suffering from PTSD had been reported to exhibit violent and criminal behavior which explains its relevance to the criminal defense.

All the PTSD cases set up a precedent for courts to decide in the future. Nonetheless, cases based on PTSD as criminal defenses are not presented as trial until such cases are appealed to the court. Trial judges follow precedents while handling the cases where PTSD is used as criminal defense. PTSD symptoms are carefully evaluated by the court before accepting the PTSD based on insanity claim as a legal defense.

Many defendants who do raise their PTSD diagnosis as a basis for an insanity defense are not successful in court. For example, in State v Simonson, the defendant was tried and convicted for the murder of his supervisors at work. The defendant claimed he had PTSD from serving in the Vietnam War, and was legally insane at the time of the murders. Despite testimony by experts establishing that the defendant suffered from post-traumatic stress disorder, the state presented evidence to show the defendant did not commit the murders during a dissociative flashback caused by PTSD. The jury rejected the insanity claim, and the defendant was sentenced to two life terms. This reflects the limited number of successful defense on cases where insanity is raised. A Vietnam veteran defendant in State v Felde also attempted to use PTSD as a basis for an insanity defense. He was not successful on his claim either.An officer was driving the defendant to a police station when the defendant attempted to shoot himself, the officer attempted to stop the defendant and the gun fired, killing the officer. Felde was charged with murder. He pled not guilty by reason of insanity due to PTSD. Expert testimony was provided at his trial which provided evidence that he suffered from PTSD. However, the jury found Felde guilty because they determined that he was aware of the wrongfulness of his actions at the time of the incident. These cases reflect the results that many veterans claiming PTSD as an insanity defense were receiving. PTSD insanity claims were not successful even with expert testimony showing the presence of the disorder. This is a reflection of the issues of contention regarding the defense of PTSD. Defendants who show they were undergoing a dissociative state and committed the crime during such, were much more successful in their defence.

Those who plea an insanity defense relying on PTSD, do not often go to trial because both sides will agree most of the time and there is no contest. Trials occur when there is disagreement. In the United States, the two most common tests used by courts to determine insanity include the M’Naghten Rule and the American Law Institute (ALI) Model Penal Code Rule. The stricter of the rules is the M’Naghten test because the defendant must demonstrate that due to his mental disease, he did not know the nature or quality of his actions or did not know his actions were wrong. The ALI test expands upon the M’Naghten test. The ALI test has two parts and provides that an individual is not liable for his criminal conduct if as a result of the mental disease, he lacks substantial capacity to appreciate the wrongfulness of the act or conform his conduct to the law. Defendants residing in jurisdictions with the ALI test have been more successful in their defense because the defendant could be deemed insane even though he is able to appreciate the wrongfulness of his actions.

Insanity Tests

Insanity tests are used by courts when defendants with PTSD plead not guilty by reason of insanity.This plea alleges that the defendant should not be criminally liable for his or her actions because of the mental disorder of PTSD. The claims of PTSD based on insanity are verified by several insanity tests which are conducted to verify the authenticity of the claims. Model Penal Code (MPC), M’Naghten rule and Durham rule are few of the insanity tests that are used to verify the individual using PTSD as part of insanity in legal defense is correct or not.Such tests check the insanity level and the claim of individual suffering from PTSD. Insanity test such as M’Naghten is used in England and Wales, whereas the United States uses American Law Institute Model Penal Code along with M’Naghten, Irresistible Impulse and Durham insanity tests. All such tests give fair idea whether the person claiming to be insane is telling the truth or trying to use PTSD as mitigating factor. All these tests are used to determine that an individual who committed the crime was sane at the time of committing the crime or not.

The Durham Rule excuses a defendant whose conduct is the product of a mental disease. Durham rule also called product test that is used in criminal cases which enables the jury to decide whether the defendant who committed the crime is not guilty because of insanity and the action of crime was done because of mental disease. Irresistible Impulse tests are also used to check the conformity whether the person who committed the crime was because of insanity and inability of the defendant to resist the impulse to commit the crime.A criminal defendant should not be found guilty due to mental condition forms the basis for Model Penal Code.The Model Penal Code is used to confirm the insanity of the criminal at the time of crime by checking two most important aspects.The test checks or concludes either criminal was unable to contemplate the criminality of his crime or confirm his conduct to the compulsions of law. Moreover, the Model Penal Code checks that an insane person has mental conditions such as anxiety or flashbacks. Court hires a mental health professional to conduct tests and verify the claims put forth by the criminal defendant.

For instance, a person diagnosed with severe schizophrenia was arrested for assault after beating someone at local eatery. He claimed to have the urge and all voices in head to attack random strangers. According to that person, the claim was that he knew it was wrong to beat random strangers but he was unable to control the impulse. The U.S court would apply Model Penal Code and that person would not be found guilty since he was unable to confirm his conduct according to the requirements of law. Furthermore the Model Penal Code is considered to be broader than M’Naghten rule. In M’Naghten rule there is a lack of understanding right from wrong which is considered outdated in the United States jurisdictions. The Model Penal Code combines the two elements as explained earlier while checking the legal insanity claim.

The Model Penal Code is widely used across different states of the United States. The Model Penal Code makes it mandatory that the person claiming to be insane should be diagnosed with some mental defect by the professional health officer. Defendants presenting PTSD as an insanity defense are considered relevant by the law. The courts apply insanity tests such as M’Naghten rule and the Model Penal Code to verify the insanity claims put forth by the defendants. The United Kingdom and the United States deal with PTSD according to the laws and considerations. In England and Wales PTSD is considered by the court as an insanity defense and help is given to the defendants who have PTSD and the claims by defendant’s area verified by the court after implementing M’Naghten Insanity test. In the United States, 24.4 million people are reported to have PTSD.Hence, the US courts are considering PTSD as an insanity defense presented by the defendants. The claims by defendants are verified mainly by American Law Institute Model Penal Code orM’Naghten rule.The most important and critical tests that are used throughout the UK and the US are model penal code and M’Naghtenrule. M’Naghten rule is the earliest test used in history which was used by the defendant to plead insanity at the trial. M’Naghten rule is also called right-wrong test which checks whether the criminal at the time of committing crime knew the difference between right and wrong or not.By the time, model penal code was reviewed by American Law Institute, the test was proved broader than outdated M’Naghten rule. Model penal code was drafted in a way that implemented psychiatry advances and tried to overcome the loopholes in M’Naghten rule.Therefore, the UK can borrow Model Penal Code criterion used by in the US to determine the legal insanity of cases involving persons with PTSD.

M’Naghten Rule

M’Naghten rule can also be defined as a test implemented to actuate that whether the person accused of crime was insane or sane at the time of committing the crime.The M’Naghten rule was derived from the trial of Daniel M’Naghten who was charged with killing a personal secretary to British Prime Minister in 1843. The suspect was acquitted because the court determined said that he was insane. Thus, M’Naghten became the first appellate case of insanity.An individual diagnosed to be legal insane is not convicted of charges that are result of mental defect. The essential question posed under the test is whether at the time of the commission of the crime, the defendant had the capability of distinguishing between right and wrong. An individual who does not understand that the act is wrong while committing the crime is contemplated. Defendant must fail to understand the legality of his/her actions while committing the crime. The accused must have been laboring under a defect of reason from a disease of the mind to not know the nature and quality of the act committed.

This state of mind can occur in a veteran with PTSD when he or she lapses into a dissociative state.Those who experience a dissociative state believe they are in a different setting and misconstrue what is occurring. They are not aware of the nature of their actions and cannot discern the character, quality or wrongfulness of the acts. This state of mind can be triggered by stimuli in the environment and once encountered, the individual enters survival manner with symptoms such as hyper alertness, hyper-vigilance and extended autonomic arousal.The dissociative state is a common element of response to trauma for this with PTSD. For a veteran who experiences a traumatic event in combat, the dissociative state will reflect a wartime experience and any persons around him or her as enemy combatants. M’Naghten Test has been successful at defending an individual who was in the dissociative state. For instance, in State v Heads, the defendant shot his brother in law while in a dissociative state and raised the defense of insanity successfully and was found not guilty. Expert testimony was offered concerning Mr. Head’s prior dissociative episodes and how similar the event at issue in trial resembled the prior experience. The most significant factor in this case was and the insanity defense was the dissociative state referred to as a flashback was considered equal to a psychotic state.Subsequently, cases in 1980 and 1989 involving Vietnam Veterans with PTSD were dropped as a result of the defendant being found not guilty by reason of insanity due to defendants being in a dissociative state at the time of the incidents.

However, the M’Naghten test has not been found to be as successful in individuals who suffer from PTSD with sensation seeking syndrome or depression suicide syndrome. Like the dissociative state, the sensation seeking syndrome and the depression suicide syndrome are typologies of PTSD. Dissociative reaction is the most common and publicized typology.Veterans with the sensation seeking syndrome typology seek risky and dangerous activities to control their surroundings. Because life outside of the war zone is boring, these veterans look for danger in a compulsive desire for re-exposure to trauma. These activities provide arousal and psychological elements like combat to reassure the veteran that he or she is still alive. Sensation seeking has been found to play an important role in adjustment to the traumatic stress of war. In the case of Michael Tindall, a Vietnam veteran, the PTSD defense relating sensation seeking was used successfully claiming that his dangerous activities including drug smuggling were the result of PTSD.Tindall sought sensation seeking activity to recreate the psychological components he faced in combat in Vietnam. This behavior allowed him to master the unconscious trauma he had experienced during the war. Recreating the excitement of war through sensation seeking provides the individual with a heightened sense of being alive and defends the individual against depression. Although this defense is not used as successfully as the dissociative reaction, it allows defendants to defend their actions and mitigate their culpability as the result of PTSD gained during wartime. The most significant difference with the dissociative reaction is that the offender typically engages in violent behavior while re-experiencing war. The Depression Suicide Syndrome also does involve violent behavior. The offender typically suffers from hopelessness and major depression and feels as though he or she should have died during combat.Suicidal urges often lead to criminal behavior. Thus, the defense of PTSD is raised. However, as stated, this typology of PTSD is not often successful with the use of the M’Naghten test.

An individual which fails to understand that the wrong in mind is moral or legal wrong while committing a crime is considered in the test. Also, defendant who fails to understand the legality of his/her actions while committing the crime. M’Naghten test verifies that the defendant was insane or sane while committing the crime.A defendant is subjected to insanity tests to validate the insanity claim. M’Naghten test has been criticized for several reasons due to lack of detailed and possibility of precise diagnosis which are required in examining the state of defendant at the time of committing the crime.

One of the main reasons is that defendant who commits a crime fulfils the legal definition of insanity but does not satisfy the medical criteria of insanity.A defendant claims to be innocent in such cases might be based on legal definition and not the medical definition. A defendant does not necessarily have some court appointed licensed mental professional in M’Naghten rule to verify the claims and availability of any physician is accepted in M’Naghten rule rather whatsoever physician is available examines the defendant.

The M’Naghten rule originated in the UK and continues to be used by the courts in insanity defence cases. Only half of the United States still uses the M’Naghten rule. In the UK, in the case of R v. T [1990] Crim. LR 256, PTSD was first considered as a legal defence. The defendant woman was raped and three days later charged with assault. The court held that it would not consider PTSD as a disease of the mind, needed to satisfy the M’Naghten rule. In the UK, there has been a distinction made between internal and external insanity. Internal is considered insanity while external is considered automation. The defense of automation has been used in instances where the defendant entered a dissociative state due to PTSD. The cases have not been consistent in the UK on which defence should apply. The

Criminal Procedure Insanity Act 1964 and the Criminal Procedure Insanity and Unfitness to Plead Act 1991 are two acts of the legislative body to address the insanity defence in the UK.Yet, despite the longevity of the defence, it is not a common defence.The MPC is much broader than M’Naghten or Irresistible Impulse tests since it is combination of two elements.

The American Law Institute (ALI) Model Penal Code (MPC)

The Model Penal Code was formulated by American law Institute in 1962 to verify the insanity claims put forth by defendants.Herbert Wechsler who was a Columbia law professor played an essential role and formulated the model penal code.The Model Penal Code is so far, the most widely accepted insanity test that is implemented by courts in the United States to check the validity of insanity claims.

The Model Penal Code was upgraded in 1981 to make it more effective. The primary reason that makes it more effective than other tests is that it fulfils legal as well as medical criteria of insanity claims.The American Law Institute examined the penal system throughout the America and examined the prohibitions, sanctions, excuses, and authority that are used altogether. Model Penal Code has played an essential role in the formulation of codified penal laws of the United States.

The Model Penal Code test uses the M’Naghten right and wrong distinction as well as a volitional factor. Under the test, if a defendant who commits the criminal act due to a mental illness, and as a result of the absence of substantial capacity either to appreciate the criminality of his act or to conform his act to the requirements of law, he will not be liable.There are two parts to the test. The first part addresses the defendant’s ability to appreciate the criminality of his behavior, which is basically the M’Naghten rule. The second part requires the defendant to show that he lacked substantial capacity to conform his behavior to the law.A veteran who lacks the capacity to appreciate the criminality of his conduct will be found insane as a result of PTSD under the Model Penal Code test. By showing that he was unable to control his actions due to his PTSD, a defendant would be successful on the defense of not guilty by reason of insanity.

The Model Penal Code test is used more successfully by individuals with sensation seeking or depression suicide syndrome because it provides the defendant with the opportunity to present evidence to the jury. The Model Penal Code test had been used by the Massachusetts court when Tindall did not claim to have flashbacks, but rather, experienced an addiction to action.Under the M’Naghten test, these defendants typically fail to present sufficient evidence of unawareness of wrongfulness and lose their defense at this point.With the Model Penal Code test, defendants can move past this requirement because of the volitional prong of the test.

In 1982, in US v Hinckley, a jury returned a verdict of not guilty by reason of insanity using the ALI test. Shortly following this court decision, the United States Congress passed the Insanity Defense Reform Act in 1984. The Act limited the insanity defense to severe mental diseases that make the defendant unable to appreciate the nature and quality of the wrongfulness of his actions. The Act eliminated the volitional and diminished capacity portions of the insanity test. Furthermore, the Act placed the burden on the defendant to prove insanity by clear and convincing evidence. PTSD dissociative states continued to qualify as a severe mental disease.

While concluding all the information gathered, it is safe to consummate that PTSD is part of insanity defense that can be used a legal defense by the defendants in the United States and the United Kingdom. The use of insanity tests such as Model Penal Code or M’Naghten rules verify the PTSD or insanity claims of criminal defendants.

The M’Naghten rule and the Model Penal Code are used by courts determine the validity of an insanity claim presented by a defendant.These tests help courts in deciding and presenting the verdict. There had been cases that abused the insanity claims to get easy treatment but tests like Model Penal Code, and M’Naghten rules have ensured that the claims are not falsified. Furthermore, PTSD has been considered as an essential part of insanity claim. A veteran claiming to be insane does suffer from PTSD and has symptoms such as severe anxiety, terrifying flashbacks, and nightmares. If a veteran who has PTSD commits a crime, is subjected to various tests to confirm the insanity and then the court decides any treatment.

Of the three tests, the Durham rule is the broadest in its application. It is now only used in one U.S. State and the Virgin Islands.The M’Naghten rule is the narrowest of the three rules. The ALI test was an effort to find a middle ground by adding volition as a factor.PTSD is being used more commonly as the basis for an insanity defense. In 1993, nearly 0.3percent of insanity pleas involved PTSD.The use of PTSD as an insanity defense is criticized as being subject to abuse when presented in court through expert testimony.Another criticism is that the evaluation of PTSD symptoms is based on the defendant’s own account and assumes that the defendant is telling the truth. There is hope that the well-defined diagnostic criteria will prevent manipulation. Although contentious, many PTSD-based insanity acquittals have arisen. Yet, even in the presence of contention, there have been cases that have been successful on the defense of insanity due to PTSD. PTSD was the source for a successful insanity defense against armed robbery charges of pharmacies to obtain prescription pain killers. The defendant’s PTSD arose as the result of combat in Bosnia, and subsequently, he became addicted to painkillers. In cases like this, acquittals may be the result of sympathetic jurors who see a former soldier psychologically damaged from his service to his or her country, rather than the result of identifying symptoms of PTSD and linking them to the criminal act. In State v Gregory, a Vietnam veteran was charged with kidnapping and assault. With the use of the PTSD defense, his conviction was overturned. There is a large amount of debate concerning the acquittal of veterans with PTSD because the symptoms may appear subjective and are often nonspecific. This allows for such symptoms to be easily masqueraded. often nonspecific. This allows for such symptoms to be easily masqueraded.

27 July, 2023

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