The experience of trauma is an important condition that may cause psychiatric symptoms and impairment. Posttraumatic stress disorder (PTSD) has been used in a variety of legal settings, including criminal and civil courts.1 Berger et al.2 have reviewed the case law involving PTSD as a criminal defense. Criminal defense arguments often emphasize that “traumatized individuals experience and process information differently, may not immediately appreciate the impact of their reactions on others and should be regarded as less culpable because they are damaged.”3 The article aims to trace the historical development of the diagnosis of PTSD, and reviews the use of this diagnosis in adults as a mental health defense in criminal courts.
Historical Background and Development of the Diagnosis of PTSD
PTSD was first introduced in the Diagnostic and Statistical Manual of Mental Disorders, third edition (DSM-III)4 in 1980. Before its official inclusion in the DSM, the effects of psychological trauma were recognized as various conditions.2,5–8 It was well-known that soldiers often experienced psychological reactions to combat.5 During the Civil War, soldiers who experienced PTSD symptoms were diagnosed with “nostalgia” or “soldier's heart.5” Veterans from World War I were diagnosed with “neurasthenia” or “shell shock.5” In World War II, soldiers were diagnosed with “battle fatigue.5” Soldiers returning from the Vietnam War who suffered changes and reexperiencing of their military service and then committed criminal acts were given the label of “Vietnam syndrome” as a legal defense.5 The phenomena of PTSD has been given several names including traumatic neurosis, neurosis following trauma, neurosis following accident, hysterical paralysis, litigation neurosis, accident neurosis, and justice neurosis among others.6
In the DSM-5,9 the most recent edition of the DSM, the diagnosis of PTSD is included in the chapter “Trauma- and Stress-Related Disorders.” Other disorders included are reactive attachment disorder, disinhibited social engagement disorder, acute stress disorder, adjustment disorders, other specified trauma- and stressor-related disorder, and unspecified trauma- and stressor-related disorder.
A notable change from the DSM-IV-TR10 to DSM-5 was the separation of anxiety disorders into several chapters including “Anxiety Disorders,” “Obsessive-Compulsive and Related Disorders,” and the “Trauma- and Stress-Related Disorders.” Levin et al.11 discuss the changes of PTSD criteria in the DSM-5 and the potential implications for criminal law.
DSM-5 criteria for PTSD is one of the few diagnoses where an etiology is included in the diagnostic criteria. Unlike most mental disorders, a diagnosis of PTSD assumes a causal connection to a contributing factor.12 This gatekeeper criterion is often referred to as Criterion A as it is detailed in DSM-5. The diagnosis then cannot be made without satisfying the need to demonstrate the experience of trauma. The DSM-5 specifies that the Criterion A trauma is exposure to actual or threatened death, serious injury, or sexual violence (eg, directly experiencing the event, witnessing the event, learning that the event occurred to a close family member or friend, or experiencing repeated or extreme exposure to aversive details of the traumatic event[s]). Although this is a more restrictive definition of trauma in DSM-5, the DMS-IV-TR criterion that the person's response involved intense fear, helplessness, or horror has been deleted.
The presence of trauma, however, is insufficient to diagnosis PTSD. The DSM-5 details symptoms in four other domains of disturbance that are required. Specifically, these domains of disturbance are Criterion B: Presence of at least one intrusion symptom associated with the traumatic event(s) beginning after the traumatic event(s) occurred (eg, distressing memories, distressing dreams, dissociative reactions, psychological distress, or reactions at exposure to cues that symbolize or resemble any aspect of the trauma); Criterion C: Persistent avoidance of stimuli associated with the traumatic event(s) beginning after the traumatic event(s) occurred; and Criterion D: Negative alterations in cognitions and mood associated with the traumatic event(s). The addition of Criterion D is also a notable addition from the three-factor model of DSM-IV-TR (ie, re-experiencing, avoidance/numbing, and hyperarousal) to a new four-factor model (ie, intrusion symptoms, persistent avoidance of stimuli, negative alterations in cognitions and mood, and hyperarousal and reactivity).9
In addition, three other diagnostic requirements are necessary, including a time requirement that the duration of disturbance is more than 1 month; the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning; and the disturbance is not attributable to the physiological effects of a substance or another medical condition. Several specifiers are also available to further classify a diagnosis of PTSD. Finally, there are criteria listed for the diagnosis in children age 6 years or younger. Similar to the other syndromal diagnoses in the DSM-5, PTSD is a heterogeneous experience for people.
A 45-year-old man was charged with aggravated assault on a police officer with a deadly weapon, fleeing or attempting to elude, leaving the scene of an accident, and reckless driving. The events stem from an incident in which the man was involved in a motor vehicle accident with a police cruiser and attempted to flee from the police. He was a veteran with a history of PTSD who had become increasingly infatuated with a woman from his apartment complex. When he learned that this woman moved out of state, he arranged to drive across country to meet her. Around this time, he was sleeping poorly with worsening nightmares, had stopped taking his medication, and was having flashbacks from his military service where he had seen active combat. During his road trip to meet the woman, law enforcement attempted to stop him for a minor traffic violation. When the police tried to pull him over, he described feeling like his life was being threatened, thinking he was back in active combat. Avoiding the stop, he pulled away and damaged his car and the police vehicles, but was apprehended. His attorney requested an evaluation of his client for possible insanity or mitigation based on his mental illness and the nature of the crime.
PTSD as Mental Health Defense
Certain legal strategies have been identified for criminal defendants with PTSD. PTSD has been used in criminal cases as the underlying mental illness in cases involving the insanity defense, battered women, automatism or unconsciousness, self-defense, diminished capacity, and to negate specific and criminal intent.6,7,11 PTSD has been described as a sympathy plea or “abuse excuse” from criminal defendants accused of violent crimes, as an attempt for a criminal defense attorney to evoke the jury's sympathy and compassion toward the defendant; not without controversy, other “abuse” defenses include Battered Woman's syndrome, Battered Child syndrome, Urban Survival syndrome, and black rage.13 PTSD phenomena presented in court as bases for criminal defenses have included dissociative flashbacks, hyperarousal symptoms, survivor guilt, and sensation-seeking behaviors.2 Expanded criteria in the DSM-5 is likely to increase the use of PTSD diagnoses in court.11 In civil court, PTSD is often used in seeking damages and disability claims, among others, and have been discussed elsewhere.11,14–17 The remainder of this article focuses on the use of PTSD in criminal settings.
The first defense I will examine is the insanity defense. Although jurisdictions in the United States have adopted a variety of criteria for insanity, all that have an insansity defense available require that defendants suffer from some form of mental illness, often termed disease, defect, or disorder.18 Although there are variations of this defense based on statute and jurisdiction, the main idea is that the defendant should not be held criminally responsible for his or her actions because of a mental disorder. Notably, insanity is pled in only 1% of cases; and few pleas are successful.18 Psychotic disorders and intellectual disability are most commonly involved.
Jurisdictions that use the M'Naghten Test require that at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he or she was doing; or if the individual did know it, that he did not know he was doing what was wrong.19 This test is widely used in the US and does potentially provide a defense for defendants with PTSD who committed crimes while in a dissociative state (ie, Criteria B of the diagnosis).5
Some US jurisdictions use the insanity standards put forth by the American Legal Institute (ALI) in the model penal code. This test holds that a “person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”20 This test essentially combines the M'Naghten wrongfulness distinction with a volitional component. Criminal defendants with PTSD may be able to successfully put forth an insanity defense in jurisdictions with the ALI standard by showing that symptoms caused them to lack substantial capacity to conform conduct to the requirements of the law.5
However, Appelbaum et al.7 showed that until 1993, PTSD was infrequently used in insanity defense cases (0.3% of the 8,163 defendants pleading not guilty by reason of insanity whose cases were collected from 49 counties in 9 states from 1980 to 1986). Furthermore, cases in which PTSD was used in the plea were no more successful than pleas based on other psychiatric diagnoses; defendants with PTSD received a verdict of not guilty by reason of insanity in 28.6% cases compared to 41.5% of cases of all other defendants, and a verdict of guilty but mentally ill in 3.6% of cases compared to 3.2% of cases of all other defendants.
A more recent study by Cohen and Appelbaum8 surveyed the experiences of members of the American Academy of Psychiatry and the Law regarding PTSD in the criminal forensic setting. Of the 238 respondents, 50% had been PTSD-involved criminal cases. The most frequent legal outcome was guilty (40%), with a minority (7%) found not guilty by reason of insanity and 1% found guilty, but mentally ill. Also notable was that only 16% of respondents believed that PTSD could meet the legal threshold for insanity based on any of four standards: M'Naghten, Insanity Defense Reform Act,21 Irresistible Impulse Test,22,23 or Product (Durham) Test.24,25
Although all jurisdictions that have raised the issue recognize unconsciousness or “automatism” as a criminal defense,5,18 it is seldom used. This defense is based on the criminal law's requirement of a mens rea (guilty mind) and an actus rea (criminal and voluntary act). A defendant who was unconscious during the commission of a crime cannot be found guilty and would likely result in full acquittal.18 Although PTSD does not cause loss of consciousness, if a criminal defendant was found to be in a dissociative state during the crime, this might be misconstrued as unconsciousness.5 Alternately, actions conducted during a PTSD flashback might reach the threshold for lack of awareness during automatism.
PTSD might also be presented as a mitigating circumstance. Depending on the jurisdiction, the presence of a mental illness can be a basis for a downward departure in sentencing (ie, a sentence that is below the accused sentencing guidelines). It must be proven that the defendant was in a reduced mental state that contributed to the commission of the offense.2
Finally, PTSD might be argued for diminished capacity or battered women. In these cases, people with PTSD might have heightened sensitivity to potential threats perceiving imminent harm. This hypervigilance may be seen in people who have assaulted or killed others who were not immediately threatening.11 The idea in self-defense arguments is that the defendant is not the aggressor, the defendant feared imminent death or bodily harm necessitating use of force to save his or her life, and the amount of force used was reasonably necessary to avert the danger.2 For example, a woman who was the victim of abuse might raise the theory of Battered Woman's syndrome and/or self-defense to explain why she attacked her abuser. Expert testimony in these cases would help describe the defendant's mental illness and its effect on the state of mind at the time of the crime.
There are potential limitations to the successful use of PTSD as a criminal defense. Similar to the use of other psychiatric disorders as defenses, there are challenges to persuade a jury. Burgess et al.5 have separated this into three categories: (1) concern about the validity of PTSD as a psychiatric condition, (2) concern about malingering, and (3) concern about causation. Expert witness testimony would need to address these categories, among other areas. However, at least one study26 examining mock jury verdicts for veterans with PTSD in the criminal system refutes these limitations. The study showed that defendants with a PTSD diagnosis were shown leniency toward treatment as compared to defendants without the same diagnosis. Jurors preferred treatment for violent crimes, and a guilt bias was shown only when the verdict options were guilty or not guilty.26
Controversy also arises from the subjective nature of PTSD symptoms, and establishing causation with the criminal act may be difficult. Even expert witnesses may hold negative views about the criteria for diagnosis of PTSD in the forensic setting, and many think it is overdiagnosed or easily malingered.8
Due to the perception that a diagnosis of PTSD can be used in a criminal trial for a multitude of purposes, there is a criticism that there has been a watering down of the illness.6 Weiss and Gutman3 recommend that forensic professionals take the position that defendants experience trauma individually, and that experts should focus on “taking detailed histories and constructing verified personal narratives that shed light on the behavior or damage in question.”3
Forensic specialists should assess the veracity of the trauma that is presenting as the basis for a diagnosis of PTSD. This can be done in a tone of clarification, not confrontation. It might be challenging to clarify a defendant's claim that he or she experienced or witnessed horrific events. Delays are common in attempts to receive requested collateral records (eg, military records) for collaboration. General principles suggested for other types of forensic evaluations27 would apply including clarifying the referral question, attention to issues of confidentiality, thorough information gathering including a mental status examination, the use of open-ended questions before asking about specific symptoms, obtaining collateral records, considering the use of psychological tests, using the correct statutory language in one's opinion, and providing the bases for one's opinions. Attention must be paid to the possibility of malingering, somatization, pre-existing conditions, personality disorders, and substance use disorders. After the submission of a report, expert witnesses may be asked to testify; admissibility and credibility of testimony of trauma depends on jurisdiction and case law.28 Following these recommendations and recognition of the complexities of using PTSD as a mental health defense in criminal proceedings will assist the forensic specialist who works in these arenas.
- McGuire J, Clark S. PTSD and the law: an update. PTSD Res Q. 2011;22(1):1–6
- Berger O, McNiel DE, Binder RL. PTSD as a criminal defense: a review of case law. J Am Acad Psychiatry Law. 2012;40(4):509–521.
- Weiss KJ, Gutman AR. Testifying about trauma: a call for science and civility. J Am Acad Psychiatry Law. 2017;45:2–6.
- American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 3rd ed. Washington, DC: American Psychiatric Publishing; 1980.
- Burgess D, Stockey N, Coen K. Reviving the “Vietnam defense”: post-traumatic stress disorder and criminal responsibility in a post-Iraq/Afghanistan world. Dev Mental Health L. 2010;29:59–79.
- Slovenko R. The watering down of PTSD in criminal law. J Psychiatry Law. 2004;32:411–438. doi:. doi:10.1177/009318530403200313 [CrossRef]
- Appelbaum PS, Jick RZ, Grisso T, et al. Use of posttraumatic stress disorder to support an insanity defense. Am J Psychiatry. 1993;150:229–233. doi:. doi:10.1176/ajp.150.2.229 [CrossRef]
- Cohen ZE, Appelbaum PS. Experience and opinions of forensic psychiatrists regarding PTSD in criminal cases. J Am Acad Psychiatry Law. 2016;44:41–52.
- American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 5th ed. Arlington, VA: American Psychiatric Publishing; 2013.
- American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders [text revision]. 4th ed. Arlington, VA: American Psychiatric Publishing; 2000.
- Levin AP, Kleinman SB, Adler JS. DSM-5 and posttraumatic stress disorder. J Am Acad Psychiatry Law. 2014;42:146–158.
- Spitzer RL, Rosen GM, Lilienfeld SO. Revisiting the Institute of Medicine report on the validity of posttraumatic stress disorder. Compr Psychiatry. 2008;49:319–320. doi:. doi:10.1016/j.comppsych.2008.01.006 [CrossRef]
- Copp KM. Black rage: the illegitimacy of a criminal defense. http://repository.jmls.edu/cgi/viewcontent.cgi?article=1698&context=lawreview. Accessed November 7, 2017.
- Gold L. The role of PTSD in litigation. http://www.psychiatrictimes.com/articles/role-ptsd-litigation. Accessed November 7, 2017.
- Gold LH, Anfang SA, Drukteinis AM, et al. AAPL practice guideline for the forensic evaluation of psychiatric disability. J Am Acad Psychiatry Law. 2008;36(suppl 4):S3–S50.
- Newman RL, Yehuda R. PTSD in civil litigation: recent scientific and legal developments. Jurimetrics. 1997;37:257–267.
- Weiss KJ, Farrell JM. PTSD in railroad drivers under the Federal Employers' Liability Act. J Am Acad Psychiatry Law. 2006;34:191–199.
- American Academy of Psychiatry and the Law (AAPL). AAPL practice guideline for forensic psychiatric evaluation of defendants raising the insanity defense. J Am Acad Psychiatry Law. 2014;42(suppl 4):S3–S76.
- M'Naghten's Case, 10 Cl. & F. 200, 8 Eng. Rep. 718 (H.L. 1843).
- Model Penal Code §4.01 (1962).
- Pub. L. No. 98–473, 98 Stat. 2057 (1984) (18)U.S.C.A. § 20(a) (West Supp. 1985).
- Regina v Oxford, 9 Car. & P. 525, 546, 173 Eng. Rep. 941, 950 (1840).
- Parsons v State, 2 So. 854, 866 (1887).
- State v Jones, 50 N.H. 369 (N.H. 1871).
- Durham v United States, 214 F.2d 862 (DC. Cir. 1954).
- Smith BA. Juror preference for curative alternative verdicts for veterans with PTSD. Military Psychology. 2016;28:174–184. doi:10.1037/mil0000115 [CrossRef]
- Glancy GD, Ash P, Bath EPJ, et al. AAPL practice guideline for the forensic assessment. J Am Acad Psychiatry Law. 2015;43(suppl 2):S3–S53.
- Shapiro DL. Testimony about trauma: problems in admissibility and credibility. In: Gold SN, ed. APA Handbook of Trauma Psychology. Foundations in Knowledge. vol 1. Washington, DC: American Psychological Association; 2017:485–499. doi:10.1037/0000019-024 [CrossRef]