Forensic Examinations and Post-Traumatic Stress Disorder
Although controversial, few PTSD-based insanity acquittals have occurred.
Posted February 25, 2021
The use of PTSD as a foundation for the insanity defense is rare.
Yet, there is a high prevalence of debilitating trauma and posttraumatic stress symptoms among criminal offenders, both men and women. In criminal responsibility (CR) evaluations the severity of the symptoms may influence findings. How then is the assessment of trauma histories and posttraumatic reactions evaluated in legal contexts? It is not. Courts have been more concerned with malingering as it relates to this diagnosis.
The A.L.I.’s (American Law Institute) formulation for CR provides that a defendant will not be held criminally responsible if at the time of the behavior in question "as a result of a mental disease or defect, s/he lacks substantial capacity either to appreciate the criminality of his/her conduct or to conform his/her conduct to the requirements of the law.
If the crime occurred during a dissociative flashback (a symptom of PTSD), it seems an argument for impairment in the defendant’s capacity to appreciate the criminality of their conduct can be made.
There has been a dearth of psychiatric research examining the role of PTSD sequela in violent criminal behavior.
PTSD can also develop after stressful, frightening or distressing events or after a prolonged traumatic experience such as physical or sexual assault, torture, witnessing or being the victim of domestic abuse or a murder to name a few. In fact, PTSD develops in about 1 in 3 people who experience severe trauma.
The relevance of PTSD and specific PTSD symptoms to criminal defenses may therefore be best understood by examining how the criminal justice system has addressed the question.
“The insanity defense [using PTSD] has always stirred a deluge of controversy, misconceptions and even mythmaking, exacerbated by the law’s reluctance to incorporate evolving empirical and psychiatric principles.” Kahler v. Kansas, 140 S. Ct. 1021, 1038 (2020). There is a fear among juries that a successful insanity plea might unleash dangerous out of control individuals back onto the street.
Dr. Lenore Walker introduced the term “Battered Women’s Syndrome” (BWS) in her 1979 book. The psychiatric community immediately cast doubt on the diagnosis. Some theories suggested this diagnosis was invalid because victims of domestic violence sought help. This was used to invalidate the theory that women were passive and helpless in the face of repeated abuse. The notion that these women were victims was completely mitigated. There was refusal to recognize this syndrome as a mental illness rendering it invalid as a claim for Competence to Stand Trial (CST) or CR.
An alternate conceptualization was introduced in the 1980s, still not recognizing the BWS as a distinct mental illness. Rather it was understood as a subcategory of PTSD.
This theory focused on the psychological disturbance that an individual suffers after exposure to a (repeated) traumatic event. In the DSM-5, PTSD is no longer subsumed in Anxiety Disorders but is categorized separately — “Trauma and Stressor-related Disorders.”
The DSM-5 narrowed the types of events that qualify as “traumatic.” The “threat to physical integrity” was removed. For example, a medically based trauma such as the diagnosis of terminal cancer no longer qualifies as trauma. Physical abuse then may also not be treated as traumatic. Curious! This leaves the question of BWS in limbo.
The link between PTSD symptoms and exposure to a traumatic event is what makes the diagnosis of PTSD a distinct disorder. Each symptom must be anchored to a traumatic event barring physicality through a temporal and/or contextual relationship.
Symptoms include intrusive recollection, avoidant/ numbing and hyper-arousal. The traumatic event evokes panic, terror, dread, grief, or despair. The avoidant/numbing symptom consists of the emotional strategies that are protective to a perceived unsafe universe.
These symptoms may be behavioral or cognitive, such as using disassociation to cut off the conscious experience, or emotional, which may include psychic numbing. These responses can be become so overwhelming that victims appear paranoid and may become convinced that the batterer will kill them at any time.
Evaluators must be well versed in what PTSD is and be able to differentiate it from what it is not. Trauma-informed forensic evaluations need to be conducted to determine whether clinical symptoms related to traumatic stress are present and to characterize the severity of symptoms and impact on an individual’s functioning.
The use of PTSD as an insanity defense has come under criticism as being more subject to malingering than other diagnoses. Another criticism is that the appraisal of PTSD symptoms is often based on the complainant's own report and presumes truthfulness.
Although they are controversial, few PTSD-based insanity acquittals have occurred.
One example; PTSD was the basis for a successful insanity defense against two counts of armed robbery of pharmacies for prescription pain killers for a defendant who had PTSD related to deployment in Bosnia and was addicted to pain killers. Perhaps the Not Guilty by Reason of Insanity (NGRI) defense in this case was linked to jury sympathy for a former soldier who was psychologically damaged from his service experience rather than the actual symptoms of PTSD that were directly related to his criminal act. These results have stimulated judicial-legal debates concerning the reports of symptoms as mostly subjective and relatively easy to imitate.
A client of mine was in an abusive marriage for 10 years. She and her spouse had four boys. He forbade her from ever leaving the house. She was isolated. He beat her regularly. He sexually abused his boys routinely and after their sexual contact, beat them severely. He also demanded that she have sexual contact with the children while he watched. She protested so he beat her also. He threw her against a wall so hard that the outline of her head could be seen. She had no choice. She rationalized the act to herself that at least in having sex with her boys they would remain physically safe. Her husband forced her to give the boys cocaine and use it herself. One evening she went to the attic to retrieve something and spotted a noose hanging over the rafter. She was convinced her husband intended to kill her very soon. She ran through the living room and jumped out of the window screaming and flailing in the broken glass. The police arrived and she was subsequently placed in a psychiatric facility. Her caregivers didn’t believe her story. Later she went before the judge, accused of multiple counts of sexual assault of a minor. Her attorney requested a competence to stand trial evaluation given the facts. The request was denied. The judge looked at her and said, “I don’t believe you couldn’t leave, we always have free choice.” She was sentenced to 50 years in prison.
For those clinicians who perform criminal responsibility evaluations, a finding of PTSD symptoms in a defendant that appears directly related to the alleged offense requires significant caution when applying a legal test of insanity.
Our legal system, which has been mainly populated by male judges, must demonstrate openness to new conceptual ideas and place their personal biases aside. As more women enter the legal arena, hopefully this will assist with acceptance. PTSD occurs in other populations, not only combat veterans.