Post-Traumatic Stress Disorder on Trial

• Author: Major Timothy P. Hayes, Jr.
• Pages: 05

2006/2007] POST-TRAUMATIC STRESS DISORDER 67

Editor's Note: On 18 July 2007, the Army launched a chain-teaching program to help Soldiers and their Families identify symptoms and seek treatment for those suffering from Post Traumatic Stress Disorder (PTSD) and mild Traumatic Brain Injury (mTBI). This program recognizes the significant and genuine impact of these conditions on Soldiers, Families, and military units. It also reflects the Army's ongoing effort to identify and treat those who are experiencing PTSD and mTBI. The following article highlights an area of special concern for Judge Advocates: dealing with survivors of PTSD in the military justice system.

POST-TRAUMATIC STRESS DISORDER ON TRIAL

MAJOR TIMOTHY P. HAYES, JR.*

It has come to my attention that a very small number of

[S]oldiers are going to the hospital on the pretext that they are nervously incapable of combat. Such men are cowards and bring discredit on the army and disgrace to their comrades, whom they heartlessly leave to endure the dangers of battle while they, themselves, use the hospital as a means of escape. You will take measures to see that such cases are not sent to the hospital but are dealt with in their units. Those who are not willing to fight will be tried by Court-Martial for cowardice in the face of the enemy.1

Every summer when it rains

I smell the jungle, I hear the planes Can't tell no one, I feel ashamed,

Afraid someday I'll go insane . . . Cause I'm still in Saigon . . . in my mind.2

1. Introduction

   The above quotes from strikingly divergent sources indicate the widely differing viewpoints that are likely to be encountered when discussing the occurrence of post-traumatic stress disorder (PTSD), or as it is most commonly referred to, PTSD. An occurrence is perhaps the best way to describe PTSD at this juncture, because it is innocuous. To call it a disorder or disease, although technically correct,3 would not satisfy those that would seek to label PTSD as an attractive excuse for criminal defendants or disgruntled Soldiers, and there are certainly individuals that continue to espouse those views.4 As long as those people continue to be members of the jury pool, or court-martial panel population, that viewpoint must be taken into account by attorneys preparing to prosecute or defend a case where PTSD is at issue. As combat activities continue in theaters like Iraq and Afghanistan, it becomes increasingly likely that trial practitioners will have to become well-versed in understanding the complexities of PTSD as both a disorder and a defense. Therefore, the purpose of this article is to examine the current state of medical and legal understanding regarding combat-related PTSD,5 especially when presented in courts-martial.

   After examining PTSD, first historically and then medically, this article will address the prevalence of PTSD within various populations. The focus of the article will then shift to its main emphasis, an analysis of PTSD within the military courtroom. This analysis will include the impact of PTSD on the accused's competency to stand trial,6 as well as its impact on the merits of the case as a defense for lack of mental responsibility7 or a claim of partial mental responsibility.8 The effects of these findings will also be discussed. Finally, the article will focus on the other areas of trial where PTSD can become a factor, such as when questioning a witness suffering from PTSD9 or when presenting PTSD as extenuation evidence during pre-sentencing.10 The final result is a resource for judge advocates to consult when preparing for a trial that in any way involves PTSD.

2. Post-Traumatic Stress Disorder

   Post-traumatic stress disorder has been documented, in some form, for as long as man has recorded his reactions to combat. As far back as ancient Hebrew civilization, Soldiers have recognized and coped with the negative mental repercussions of combat.11 Hundreds of years later, in the Greek historian Xenophon's obituary describing the life of Clearchus, one commentator suggests that we are presented with "the first known historical case of PTSD in the [W]estern literary tradition."12 The great Greek historian Herodotus, writing of the Battle of Marathon in 490 B.C., told of a Soldier that went permanently blind upon witnessing the death of his comrade in battle, although the blinded Soldier himself had

   not been physically wounded.13 The English King Alfred became so ill due to the horrors of a battle in 1003 A.D. that he vomited and was unable to lead his men.14

   The first formal diagnosis occurred in 1678, when the Swiss coined the term "nostalgia" for a group of symptoms suffered by Soldiers that would arguably fall within the range of clinical PTSD, such as melancholy, insomnia, loss of appetite, and anxiety.15 During the American Civil War, an Army surgeon named Dr. Jacob Mendes Decosta diagnosed many cases of tension, insomnia, and fear of returning to the front which could be manifested by paralysis, self-inflicted wounds, and increased cardiac palpitations. In 1871, Dr. Decosta labeled the condition "irritable heart" or "soldier's heart" in an article in the American Journal of Medical Sciences.16 It was reported that veterans that had returned home would collapse due to emotional strain, even if they had shown no signs of mental illness on the battlefield.17 Public outcry and the urging of surgeons led the United States to establish the first military hospital for the insane in 1863.18 In the Russo-Japanese War of the early twentieth century, the Russian Army determined for the first time that mental collapse directly resulted from the stressors of combat, and that such collapses were "legitimate medical conditions"; their efforts to diagnose and especially to treat these conditions can fairly be regarded as the "birth of military psychiatry."19

   During World War I, many attributed Soldiers' psychological injuries to higher calibers of weaponry. It was suggested that large artillery shells were causing concussions, or "shell shock" as it was then described.20 Towards the end of the war, the medical establishment began to realize that these mental injuries had an emotional, rather than

   physical, root.21 In actuality, more American Soldiers were out of action due to psychiatric illness than died in combat.22 The psychiatric community concluded that these injuries occurred only in "weak-minded" individuals and set out to solve the problem by screening such people out of the military before induction, to the extent they could be identified.23

   World War II (WWII) produced psychiatric casualties in even more alarming numbers than had been experienced in World War I. One commentator asserts that, out of approximately 800,000 Soldiers that participated in direct combat, over thirty-seven percent had to be discharged for "psychiatric" reasons.24 Regardless of the accuracy of those numbers, clearly it was not just the mentally "weak" that were susceptible to breakdowns. Regrettably, this recognition did not lead to the conclusion that such disorders were in fact mental diseases. On the contrary, the introduction and widespread use of such terms as "battle fatigue" and "mental exhaustion" reinforced the belief that a little rest would be all that was required to return the Soldier to the front.25

   Psychiatric casualty rates remained high in the Korean and Vietnam Wars,26 and the rates from Vietnam were possibly exacerbated by the moral questions that many American Soldiers had about the war itself.27

   No significant advances in the study or classification of the underlying causes and effects of these psychiatric injuries took place until after the Vietnam War ended. These advances followed widespread recognition of the mental trauma of Vietnam veterans, partly evidenced by the opening of over ninety counseling centers for veterans across the country by 1979.28 Curiously, unlike in previous wars, the occurrence and frequency of reported psychiatric trauma increased as the war came to an

   end.29 Additionally, during the same period, there were a number of catastrophic events such as acts of terrorism, natural disasters, and plane crashes. Mental health professionals working with victims of these disasters noted almost identical symptoms among this population as those complained of by Vietnam veterans.30 The medical community began to consider "battle fatigue" and other stress reactions as a certifiable, clinical diagnosis. After extensive research by veterans groups and recommendations by mental health workers, the 1980 update to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-III)31 included a new category of illness: post-traumatic stress disorder.32 The most recent update in 1994, DSM-IV, continues to list post-traumatic stress disorder as a mental disorder.33 A text revision occurred in 2000 which did not affect the PTSD criteria.34

   A. Post-Traumatic Stress Disorder from a Medical Perspective

   Post-Traumatic Stress Disorder (PTSD) is a debilitating condition that follows a terrifying event. Often, people with PTSD have persistent frightening thoughts and memories of their ordeal and feel emotionally numb, especially with people they were once close to. PTSD, once referred to as shell shock, was first brought to public attention by war veterans, but it can result from any number of traumatic incidents. These include kidnapping, serious accidents such as car or train wrecks, natural disasters such as floods or earthquakes, violent attacks such as mugging, rape, or torture, or being held captive. The event that triggers it may be

   something that threatened the person's life or the life of someone close to him or her.35

   That, in laymen's terms, is an accurate description of PTSD. The DSM-IV criteria, which are provided in their entirety at Appendix A, are summarized below:

   (1) A traumatic event that involved death or serious injury to self or others and...