Soldier Suicides and Outcrit Jurisprudence: an Anti-subordination Analysis

• Publication year: 2022

44 Creighton L. Rev. 883. SOLDIER SUICIDES AND OUTCRIT JURISPRUDENCE: AN ANTI-SUBORDINATION ANALYSIS

SOLDIER SUICIDES AND OUTCRIT JURISPRUDENCE: AN ANTI-SUBORDINATION ANALYSIS

OLYMPIA DUHART(fn*)

There was no miracle cure, no drug they could take to hold back or dissipate their feelings of horror, grief, or fear. "There is no preparation in our training for the mental health struggles that come later. . . .(fn1)

I. INTRODUCTION

Even if they survive the war, the soldiers who make it home are struggling to stay alive. Soldier suicides, which have reached staggering numbers since the onset of the wars in Iraq and Afghanistan, reflect the pervasive mental health issues that plague veterans. Post-Traumatic Stress Disorder ("PTSD") rates have increased dramatically. Of the 30,000-plus suicides in the United States each year, 20% are acts by veterans.(fn2) That translates to roughly eighteen veteran suicides each day.(fn3) Among American soldiers returning from Iraq and Afghanistan who sought treatment at the Department of Veterans Affairs ("VA") hospitals, more than 40% suffer from a mental disorder.(fn4)

The suicide rate of active-duty soldiers continues to escalate.(fn5) In 2009, the Pentagon recorded 301 active-duty suicides among the four branches of the military-the highest figure since tracking began in 1980.(fn6) Last year, the military set a record for suicides.(fn7)

But even these numbers do not tell the whole story. The scariest statistics require us to unpack the regulatory scheme established by the VA for health care. To access the mental health care benefits- which is essential for veterans fighting PTSD-afflicted veterans must successfully navigate a maze of forms, filings, deadlines, and biases. Recent litigation brought by veteran advocates(fn8) highlights the failures of the current VA mental health benefits policy. More significantly, the regulatory regime also reflects the ways in which a veteran with PTSD collides with our normative expectations for the "G.I. Joe Soldier," a persistent myth that fuels the dissonance between mental health needs and services for veterans. Soldiers(fn9) fighting mental illness are outside our normative expectations since we are culturally programmed to envision soldier-warriors who are seemingly indestructible in body and mind. Soldiers suffering from PTSD do not comport with the stereotypes promoted through propaganda.

As the American troops in Iraq and Afghanistan prepare to come home,(fn10) the federal government will be challenged to meet the mental health needs of even more new veterans struggling with mental illness. So far, efforts to address the rate of soldier suicide and PTSD have been unsuccessful. Despite some legislative efforts and policy changes, the number of suicides continues to rise.(fn11) A key component of the anti-suicide effort absent from the reform efforts has been a deconstruction of the suicide epidemic among American soldiers and veterans. OutCrit(fn12) jurisprudence, which employs transformative techniques to address the marginalization of vulnerable groups, offers a means of responding to soldier suicide.

OutCrit scholars envision a post-subordination world where traditionally subordinated groups are free of social disdain and able to access justice in a meaningful way.(fn13) In this OutCrit vision, transformations in socio-legal conditions are needed to produce substantive security for communities traditionally relegated to outsider status.(fn14) This Article suggests that OutCrit jurisprudence(fn15) can be used to help identify the source of the mistreatment of veterans fighting for mental health treatment. It may also be instrumental to improving mental health treatment for soldiers. Part Two of this Article will discuss the problem of suicidality and PTSD among American soldiers and veterans. In Part Three, this Article will offer a brief outline of OutCrit jurisprudence. Part Four of this Article will apply three hallmarks of OutCrit jurisprudence-narrative, culture wars, and substantive equality-to the issue of soldier suicides. Specifically, this Article will employ OutCrit jurisprudence to critique the various ways narrative is controlled and culture wars play out in social and legal arenas to deny substantive equality to soldiers struggling with mental illness. Finally, in Part Five this Article concludes that OutCrit markers can help us understand and respond to soldier suicide.

II. The problem: post-traumatic stress disorder and suicide

Twenty-two-year-old Army veteran Joshua Omvig ("Josh") has become an unfortunate poster child for the face of the wars' newest casualties.(fn16) This native of Gillette, Wyoming served eleven months in Iraq before his return home.(fn17) Josh was back, but he would never be the same. He suffered from nightmares, dealt with flashbacks, and told his family he thought he was depressed.(fn18) But the stigma of seeking treatment for mental health-even after completing a tour of duty-was too great. Less than a month after his return, Josh took his own life.(fn19) The story of Josh Omvig is one example of many that fit the description of the soldier struggling silently with mental illness.

Suicides among veterans have reached an epidemic level. Operation Iraqi Freedom ("OIF") and Operation Enduring Freedom ("OEF") are notable for the huge engagement numbers of Armed Forces. Rivaled in figures only by the Vietnam War, more than one and a half million people have been deployed in Iraq and Afghanistan.(fn20) In 2010, President Barack Obama ordered 30,000 more troops to Afghan-istan.(fn21) Furthermore, advances in military defense technology have enabled more wounded soldiers to survive these operations.(fn22) More soldiers survive, but as one writer noted:

Many of these survivors wake up each day only to be reminded of their traumatic injuries or debilitating mental disorders. A great majority of soldiers in combat experience traumatic events often considered horrific in a civilized society, such as seeing dead bodies or remains, or witnessing both friends and enemies killed in violent manners.(fn23)

The horrific violence is taking its toll on the soldiers. Army suicides are up to their highest level in twenty-six years.(fn24) A study commissioned by the Pentagon in 2007 found that "hundreds of thousands" of the united States troops who completed a tour in Iraq or Afghanistan showed signs of Post-Traumatic Stress Disorder ("PTSD"), depression, or anxiety.(fn25) According to recent united States Army data, Army troops seek mental health treatment in excess of 100,000 times a month-a jump of more than 75% between the final months in 2006 to the final months of 2009.(fn26)

A. The Symptoms

Though the acronym has secured its place in contemporary culture, most people are not able to articulate the serious, complex symptoms associated with Post-Traumatic Stress Disorder ("PTSD"). Typically, PTSD follows exposure to "an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury."(fn27) Symptoms of PTSD may include recurrent nightmares, difficulty falling asleep, hyper-vigilance, and outbursts of anger.(fn28) Those with PTSD also show a high correlation with panic disorders, obsessive-compulsive disorders, social phobias, and major depressive disorders.(fn29) Furthermore, the disorder is likely to be more severe when the stressor is of human design (as opposed to a natural disaster).(fn30) Combat is one of the most severe stressors.(fn31) "Seeing or handling human remains also dramatically increases the severity of any PTSD the service member may experience."(fn32)

B. The Numbers

Post-Traumatic Stress Disorder ("PTSD") rates are as high as 18% among Operation Iraqi Freedom ("OIF") and Operation Enduring Freedom ("OEF") veterans,(fn33) compared to 8% among veterans of the first Gulf War.(fn34) More than one and a half million United States soldiers have been in Afghanistan and Iraq since 2001.(fn35) As noted, there have been more than 4,000 casualties in Iraq, more than 30,000 injured, and more than 300,000 diagnosed with PTSD.(fn36) According to the Department of Veterans Affairs ("VA"), more than 400,000 veterans receiving compensation benefits are "service connected for PTSD."(fn37) As many as 30% of deployed soldiers are struggling with PTSD.(fn38) In the general population-in contrast-PTSD impacts less than 4% of adults in the united States.(fn39)

The comparable statistics for suicides are equally alarming. Army statistics demonstrate that the suicide rate among united States Army soldiers continued to rise steadily through 2009.(fn40) In 2008 and 2009, soldier suicides set a "record pace."(fn41) But despite increasing awareness about suicidality among soldiers, soldier suicides continued to climb.(fn42) In 2009, 160 cases were considered active-duty suicides.(fn43) The figure represents the highest tally of active-duty soldier suicides since the Army starting tracking such deaths in 1980.(fn44) The rate has significantly increased among men between the ages of eighteen and thirty, mid-career officers, and women.(fn45) In 2009, the Marine Corps recorded fifty-two suicides-the highest number on record since 2001.(fn46) The veteran suicide rate jumped 26% between 2005 and 2007, according to early reports from the VA.(fn47) Compared to the suicide rate for civilian women, a military report showed...