The Role of PTSD in Adjudicating Violent Crimes Mark B. Hamner
Introduction There are a number of considerations, including ethical and clinical or diagnostic factors, in utilizing the diagnosis of posttraumatic stress disorder (PTSD) in criminal proceedings. The reliability and validity of the diagnosis may be questioned. Legal precedent may consider extant diagnostic criteria for PTSD and comorbid diagnoses. However, these diagnostic criteria are often in flux considering new research findings. For example, the introduction of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders,1 published by the American Psychiatric Association, includes some changes in the PTSD diagnostic criteria. How will this affect interpretation of past legal judgments? Moreover, PTSD has significant psychiatric comorbidity, e.g., substance abuse, which in itself may influence violent behavior and its consequences. Some of these comorbid diagnoses also have changes in their diagnostic criteria. The introduction of biological tests in the assessment of PTSD will likely facilitate more objective diagnosis. Advances in the neurosciences will lead to better understanding of the neurobiological substrates of violence in general. This may eventually complement the use of categorical psychiatric diagnoses. However, biological measures are not yet utilized in the PTSD diagnostic criteria.2 Finally, the effect of psychiatric diagnoses, including PTSD, on the ability to discriminate right from wrong is often at the core of criminal proceedings. This paper summarizes some of the relevant considerations in utilizing the diagnosis of PTSD for adjudicating violent crimes.
Posttraumatic Stress Disorder Diagnosis PTSD became a formal diagnosis in psychiatry with the publication of the Diagnostic and Statistical Manual of Mental Disorders3 in 1980 by the American Psychiatric Association. DSM-IV4 further refined the diagnosis based on extensive research into the validity of the construct. This edition had been utilized until May 2013 when the fifth edition was published. The disorder is characterized in DSM-IV as three symptom clusters that may develop after a severe psychological trauma (see Table 1). These symptom clusters include Mark B. Hamner, M.D., is a Professor of Psychiatry and Behavioral Sciences at the Medical University of South Carolina and Medical Director of the PTSD Clinic at the Ralph H. Johnson VA Medical Center in Charleston, S.C. His clinical and research interests include the assessment of PTSD and comorbidity, including psychosis, psychotherapy, and pharmacotherapy of PTSD, and other psychiatric disorders including depression and schizophrenia. He is board-certified in Psychiatry with added qualifications in Geriatric Psychiatry. He has numerous peer-reviewed publications, abstracts, and book or encyclopedia chapters. He is a Fellow of the American Psychiatric Association. neurosciences • summer 2014
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re-experiencing the trauma in nightmares, intrusive memories and other ways; avoidance of reminders of the trauma and emotional numbing; and symptoms of increased arousal. DSM-V has altered somewhat the definition of the traumatic experience and the resulting symptoms. The symptoms are expanded into four symptom clusters with the addition of a cluster involving negative alterations in cognitions and mood associated with the trauma (see Table 2). There is also a separate classification for children six years and younger in DSM-V. Importantly, it is recognized that extensive psychiatric comorbidity occurs with PTSD. This comorbidity includes depression, alcohol and other substance dependence, personality disorders such as antisocial personality, and other diagnoses as reported in the National Comorbidity Study.5 Therefore, it should be recognized that not only the diagnosis of PTSD alone has an important role in adjudicating violent crimes but also various subtypes and comorbidities must also be recognized. Many of these, e.g., substance abuse, may play a substantial role as risk factors for violent behavior.6 The potential role of alcohol abuse as a risk factor for violent behavior is further illustrated in the case vignette and represented potential mitigating evidence in this case. From an ethical standpoint as well, careful attention should be given to the potential role of these other comorbid diagnoses when the diagnosis of PTSD is introduced. It has been asserted that courts have a “misplaced confidence” in psychiatric diagnoses.7 Criminal justice systems may, therefore, overuse definitions from psychiatric classification systems. This in and of itself raises ethical issues related to the use of psychiatric
diagnoses in general in forensic settings and in the use of PTSD in particular. PTSD is included in the list of psychiatric diagnoses in which validity is now being examined for the syndromal diagnosis as well as potential subtypes.8 As such, legal systems’ faith in current categorical diagnoses (e.g., DSM-IV) may be “misplaced and unhelpful” in the administration of justice. To further complicate the issue, there may be limited agreement among consulting experts on the diagnosis of PTSD. Interestingly, the level of agreement between psychiatric experts may well vary based on the actual diagnosis. For example, there may be good inter-rater reliability on several diagnoses including acquired brain injury, schizophrenia spectrum psychoses, substance-induced psychotic disorder, and intellectual disability. There may be moderate agreement on depressive and personality disorders. There is often poor agreement on the diagnosis of PTSD as well as other anxiety disorders.9 Overall, however, the diagnosis of PTSD has arguably facilitated the assessment of victims’ and, in some cases, perpetrators’ rights, despite the frequent ambiguity about the role of this diagnosis as well as other comorbid diagnoses.10 This is further highlighted in the case vignette below.
Victims and the Diagnosis of PTSD There is an extensive literature that documents the development of PTSD after a number of types of violent crimes. In fact, the definitions of traumatic experiences both in DSM-IV (1994) and DSM-V (2013) encompass the psychological effects of violent crime. Two examples of victim populations are given below. There is a high rate of PTSD occurring as a consequence of domestic violence. One study examined
Table 1 Major PTSD Symptoms Clusters in DSM-IV The specific symptoms are described in the manual.
Table 2 Major PTSD Symptoms Clusters in DSM-V The specific symptoms are described in the manual. The symptom clusters are given for adults. There is a separate definition for children 6 years or less.
A. The person has been exposed to a traumatic experience
A. Exposure to actual or threatened death, serious injury, or sexual violence
B. The traumatic event is persistently reexperienced, e.g., with intrusive memories, nightmares and other phenomena
B. Presence of one or more intrusion symptoms associated with the traumatic event(s)
C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness
D. Negative alterations in cognitions and mood associated with the traumatic event(s)
D. Persistent symptoms of increased arousal
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C. Persistent avoidance of stimuli associated with the traumatic event(s)
E. Marked alterations in arousal and reactivity associated with the traumatic event(s)
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the PTSD symptoms clusters as defined in DSM-IV (re-experiencing, arousal, and avoidance /numbing) in victims of intimate partner violence (N=156).11 Only the re-experiencing symptom cluster predicted interpersonal violence re-victimization but not the other clusters. This finding has significant forensic as well as treatment implications and suggests that there may need to be a particular focus on the core re-experiencing symptoms of PTSD in conducting forensic evaluations. PTSD is highly prevalent in physically injured victims of nondomestic violence as well. For example, Venke Johansen and colleagues12 conducted a longitudinal survey in individuals suffering injuries from nondomestic violent crimes (N=70). Questionnaires included specific PTSD assessments and others to
anger and impulsivity may occur in individuals with the disorder. In fact, irritability is one of the symptoms of PTSD.15 Moreover, “sudden acting or feeling as if the trauma was recurring,” characterized as flashback episodes (one of the core re-experiencing symptoms), could involve manifestations of violent behavior. So arguably, violent behavior could be affected by core PTSD symptoms. However, violence may occur in association with a number of psychiatric disorders in addition to the non-affected population. For example, domestic violence has been associated with several psychiatric disorders including alcohol and substance abuse, depression, and psychosis.16 Violence and substance use disorder comorbid with PTSD represent this challenge in forensic assessments. Emma Barett and colleagues17 assessed demographics, perpetration
An extensive systematic review recently concluded that, although psychiatric patients experience a high prevalence of domestic violence, there is limited information regarding the relative risk compared with non-psychiatric populations. Therefore, it has been discussed that courts may over use psychiatric diagnostic criteria in general to adjudicate violent crimes. In other words, the use of categorical diagnoses may not be the best descriptor of either the cause of violence or the consequences. assess level of physical injury, perceived life threat, prior experience of violence, peritraumatic dissociation, and social support. There was a high prevalence of PTSD (31%), that correlated with severity of injury or prior violence, and also with perceived life threat or low social support. This is consistent with an extensive literature finding that physical injury in the context of a psychological trauma, such as violent crime or combat, significantly increases the risk for development of PTSD, other psychiatric disorders, and associated disability.13
Perpetrators and the Diagnosis of PTSD PTSD may be a risk factor for the commission of a variety of violent crimes. As such, the diagnosis may be utilized as a basis for criminal defense. Examples include the use of PTSD as an insanity defense, in cases of dissociation or unconsciousness, diminished capacity, and in sentencing mitigation.14 The latter is illustrated in the case vignette. It should be noted that the PTSD diagnosis does not include the phenomena of violent behavior per se. In fact, the vast majority of individuals with PTSD do not have a history of violent behavior. However, neurosciences • summer 2014
of violent crime, mental health diagnoses, and PTSD symptom clusters in 102 individuals with substance use disorders. Over half had lifetime violence and 16% had committed violence in the past one month. In contrast to the study of intimate partner violence, hyperarousal symptoms were independent predictors of violence perpetration in this population. This study highlighted the importance of assessing for PTSD in individuals with substance use disorders in a forensic setting. This notion is further illustrated in the case vignette. An extensive systematic review recently concluded that, although psychiatric patients experience a high prevalence of domestic violence, there is limited information regarding the relative risk compared with non-psychiatric populations.18 Therefore, it has been discussed that courts may over use psychiatric diagnostic criteria in general to adjudicate violent crimes. In other words, the use of categorical diagnoses may not be the best descriptor of either the cause of violence or the consequences. With this in mind, an early study supported the notion that PTSD can result in violent behavior.19 This study included assessment of a large non-combat trauma population and also uti157
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lized dimensional measures of PTSD symptoms. This is important because the intensity and frequency of PTSD symptoms may be more relevant than just the categorical presence or absence of symptoms in the actual manifestation of violent behavior. Finally, the effect of psychiatric diagnoses on the ability to discriminate right from wrong is often at the core of criminal proceedings.19 Judgment, as assessed in the mental status examination, may be affected by a variety of psychiatric symptoms which may be included in the criteria for PTSD, including alterations in cognition and affect. The definitions of these latter symptoms have been expanded in DSM-V. This will be of particular relevance in future court decisions. However, the presence of these PTSD symptoms at the time of violence, as determined in a forensic psychiatric evaluation, rests largely on historical data.
Case Illustration The Porter v. McCollum case was argued before the Supreme Court in 2008.20 The respondent was Bill McCollum, Attorney General of Florida. Petitioner George Porter was a Korean War veteran who was wounded and decorated for his combat service. He was involved in two major engagements in the war. He had been charged and convicted by a Florida state court of two counts of first degree murder in the shooting deaths of his former girlfriend and her boyfriend. He received a death sentence. He subsequently filed for a writ of habeas corpus in a Florida Federal District court, arguing that his Sixth Amendment right to effective counsel had been violated. This district court agreed and granted the petition. On appeal, however, the U.S. Court of Appeals for the Eleventh Circuit reversed this decision on the grounds that his case was not affected by inadequate counsel. This case was brought before the Supreme Court. Of central importance in his appeal was that his commanding officer’s powerful description of the petitioner’s war service as part of the mitigating evidence had not been presented during the penalty phase of his trial in 1988. It was successfully argued that he was suffering from PTSD. It was also argued that the petitioner had suffered from child abuse and also that he had evidence for current cognitive dysfunction which may have affected his judgment. Moreover, it was discussed that his history of alcohol abuse in the context of violent behavior was also mitigating evidence. The Supreme Court reversed the Eleventh Circuit, agreeing that his Sixth Amendment right to effective counsel had been violated and that there was a reasonable probability that this affected the sentencing. A writ of habeas corpus was therefore granted to Mr. Porter.
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Biological Studies: Will They Make the Diagnosis of PTSD More Objective? The validity of the diagnosis of PTSD remains affected by the often subjective nature of the contemporaneous emotional response to the trauma as well as the associated symptoms. Psychophysiological testing as such may facilitate the diagnosis.21 This would strengthen objective diagnosis in the courtroom. Psychophysiological testing could be considered as one potential component of a forensic evaluation. A metaanalysis of psychophysiological studies in PTSD was conducted by Nnamdi Pole.22 This included baseline studies (N=58), startle studies (N=25), standardized trauma cue studies (N=17), and idiographic studies (N=22). The author assessed a number of physiological parameters in these studies including facial electromyograms (EMG), heart rate (HR), skin conductance (SC), and blood pressure (BP). Significant weighted mean effects were found in PTSD for HR and SC in baseline studies; eyeblink EMG, HR, and SC habituation slope in startle studies; HR in trauma cue studies; and frontalis EMG, corrugator EMG, HR, and SC in idiographic trauma cue studies. SC, EMG, and HR alterations were robust across all study types. It was concluded that PTSD was clearly associated with altered psychophysiological measures as compared with non-affected individuals but that the generalizability of these findings may be limited by subject populations (for example, a predominance of studies in male veterans) and lack of consideration of PTSD subtypes. In the future, PTSD litigation may also involve data from other neuroscience research. The field has not yet reached this point. It is speculated that the neural basis of PTSD, e.g., as determined by neuroimaging findings or neuroendocrine challenge studies, eventually may help to distinguish patients from non-suffering individuals. It is generally felt that, given the current state of the art, the sensitivity and specificity of biological tests are insufficient at this time.23 However, given the frequent controversy about the validity of the diagnosis in forensic settings, biological tests are of critical concern for future evaluations.
The Special Case of Children Estimating present and future damages following child maltreatment represents another challenge in the use of the PTSD diagnosis. Plaintiffs in civil lawsuits regarding child maltreatment require careful assessment for PTSD phenomena. These forensic evaluations, potentially involving children, require special expertise and knowledge of current research findings, evidence-based treatments for psychological trauma, and knowledge of the ethics and laws governjournal of law, medicine & ethics
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ing mental health expert practice and testimony in personal injury litigation.24 Childhood sexual abuse in particular represents a unique challenge. The diagnosis of PTSD in these cases still is dependent on the child’s recall of the traumatic event since medical examination or other objective evaluations may not yield adequate evidence.25 Exposure to domestic violence also has far-reaching implications for the child. These implications may include increase risk for sexual or physical abuse, development of a number of emotional problems including PTSD, and later risk for additional traumas.26 Moreover, there may be an increased risk for medical disorders as well as psychiatric diagnoses in addition to PTSD in affected children.27 These additional effects may be mediated in part by chronic alterations in the hypothalamic-pituitary-adrenal axis, which is considered a critical biological system in mediating stress-response.28
Summary This brief paper has highlighted several ethical and clinical considerations that are relevant in introducing the diagnosis of PTSD in criminal proceedings. These arguments pertain to both victims and perpetrators of violence. The cases involving children represent unique challenges. The reliability and validity of the PTSD diagnosis may be questioned. Legal precedent should consider extant diagnostic criteria for PTSD and co-morbid diagnoses. However, these diagnostic criteria are often in flux considering new research findings. PTSD has significant psychiatric co-morbidity, which may influence violent behavior. Some of these co-morbid diagnoses also have alterations in their diagnostic criteria with new revisions of the DSM. This is especially relevant with the recent publication of DSM-V. The utilization of biological tests in the assessment of PTSD will likely facilitate more objective diagnosis. Moreover, advances in the neurosciences may eventually lead to better understanding of the neurobiological substrates of violence in general. This may then complement the use of categorical psychiatric diagnoses. However, the state of the art of biological measures does not yet justify their use in PTSD diagnostic criteria. Finally, the effect of psychiatric diagnoses, including PTSD, on the ability to discriminate right from wrong is often at the core of criminal proceedings. Acknowledgements
This paper was presented in part at the 2012 Thomas A. Pitts Lectureship in Medical Ethics, Medical University of South Carolina. The author wishes to thank the anonymous reviewers for their helpful suggestions.
neurosciences • summer 2014
References
1. American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (Arlington, VA: APA Press, 2013). 2. Id. 3. American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders, 3rd ed. (Arlington, VA: APA Press, 1980). 4. American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (Arlington, VA: APA Press, 1994). 5. R. C. Kessler, A. Sonnega, E. Bromet, M. Hughes, and C. B. Nelson, “Posttraumatic Stress Disorder in the National Comorbidity Survey,” Archives of Gen Psychiatry 52, no. 12 (1995): 1048-1060. 6. H. Pickard and S. Fazel, “Substance Abuse as a Risk Factor for Violence in Mental Illness: Some Implications for Forensic Psychiatric Practice and Clinical Ethics,” Current Opinion in Psychiatry 26, no. 4 (2013): 349-354. 7. G. W. Mellsop, D. Fraser, R. Tapsell, and D. B. Menkes, “Courts’ Misplaced Confidence in Psychiatric Diagnoses,” International Journal of Psychiatry 34, no. 5 (2011): 331-335. 8. See DSM-V, supra note 1. 9. O. Nielssen, G. Elliott, and M. Large, “The Reliability of Evidence about Psychiatric Diagnosis after Serious Crime: Part I. Agreement between Experts,” Journal of the American Academy of Psychiatry and the Law 38, no. 4 (2010): 516-523. 10. O. Berger, D. E. McNeil, and R. L. Binder, “PTSD as a Criminal Defense: A Review of Case Law,” Journal of the American Academy of Psychiatry and the Law 40, no. 4 (2012): 509-521. 11. K. F. Kuijpers, L. M. van der Knaap, and F. W. Winkel, “PTSD Symptoms as Risk Factors for Intimate Partner Violence Revictimization and the Mediating Role of Victims’ Violent Behavior,” Journal of Traumatic Stress 25, no. 2 (2012): 179-186. 12. V. A. Johansen, A. K. Wahl, D. E. Eilertsen, and L. Weisaeth, “Prevalence and Predictors of Post-Traumatic Stress Disorder (PTSD) in Physically Injured Victims of Non-Domestic Violence: A Longitudinal Study,” Social Psychiatry and Psychiatric Epidemiology 42, no. 7 (2007): 583-593. 13. M. L. O’Donnell, T. Varker, A. C. Holmes, S. Ellen, D. Wade, M. Creamer, D. Silove, A. McFarlane, R. A. Bryant, and D. Forbes, “Disability after Injury: The Cumulative Burden of Physical and Mental Health,” Journal of Clinical Psychiatry 74, no. 2 (2013): 137-143. 14. See Berger et al., supra note 10. 15. See DSM-IV, supra note 4. 16. See Pickard and Fazel, supra note 6. 17. E. L. Barrett, K. L. Mills, and M. Teesson, “Hurt People Who Hurt People: Violence amongst Individuals with Comorbid Substance Use Disorder and Posttraumatic Stress Disorder,” Addictive Behaviors 36, no. 7 (2001): 721-728. 18. S. Oram, K. Trevillion, G. Feder, and L. M. Howard, “Prevalence of Experiences of Domestic Violence among Psychiatric Patients: Systematic Review,” British Journal of Psychiatry 202, no. 2 (2013): 94-99. 19. See Berger et al., supra note 10. 20. Porter v. McCollum, “The Oyez Project at IIT Chicago-Kent College of Law,” April 26, 2013, available at (last visited April 1, 2014). 21. R. K. Pitman and S. P. Orr, “Psychophysiologic Testing for Post-Traumatic Stress Disorder: Forensic Psychiatric Application,” Bulletin of the American Academy of Psychiatry and the Law 21, no. 1 (1993): 37-52. 22. N. Pole, “The Psychophysiology of Posttraumatic Stress Disorder: A Meta-Analysis,” Psychological Bulletin 133, no. 5 (2007): 725-746. 23. Id.
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S Y MPO SIUM 24. D. L. Corwin and B. R. Keeshin, “Estimating Present and Future Damages Following Child Maltreatment,” Child & Adolescent Psychiatric Clinics of North America 20, no. 3 (2011): 505-518. 25. J. Werner and M. S. Werner, “Child Sexual Abuse in Clinical and Forensic Psychiatry: A Review of Recent Literature,” Current Opinion in Psychiatry 21, no. 5 (2008): 499-504.
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26. S. Holt, H. Buckley, and S. Whelan, “The Impact of Exposure to Domestic Violence on Children and Young People: A Review of the Literature,” Child Abuse & Neglect 32, no. 8 (2008): 797-810. 27. G. N. Neigh, C. F. Gillespie, and C. B. Nemeroff, “The Neurobiological Toll of Child Abuse and Neglect,” Trauma Violence Abuse 10, no. 4 (2009): 389-410. 28. Id.
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Introduction There are a number of considerations, including ethical and clinical or diagnostic factors, in utilizing the diagnosis of posttraumatic stress disorder (PTSD) in criminal proceedings. The reliability and validity of the diagnosis may be questioned. Legal precedent may consider extant diagnostic criteria for PTSD and comorbid diagnoses. However, these diagnostic criteria are often in flux considering new research findings. For example, the introduction of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders,1 published by the American Psychiatric Association, includes some changes in the PTSD diagnostic criteria. How will this affect interpretation of past legal judgments? Moreover, PTSD has significant psychiatric comorbidity, e.g., substance abuse, which in itself may influence violent behavior and its consequences. Some of these comorbid diagnoses also have changes in their diagnostic criteria. The introduction of biological tests in the assessment of PTSD will likely facilitate more objective diagnosis. Advances in the neurosciences will lead to better understanding of the neurobiological substrates of violence in general. This may eventually complement the use of categorical psychiatric diagnoses. However, biological measures are not yet utilized in the PTSD diagnostic criteria.2 Finally, the effect of psychiatric diagnoses, including PTSD, on the ability to discriminate right from wrong is often at the core of criminal proceedings. This paper summarizes some of the relevant considerations in utilizing the diagnosis of PTSD for adjudicating violent crimes.
Posttraumatic Stress Disorder Diagnosis PTSD became a formal diagnosis in psychiatry with the publication of the Diagnostic and Statistical Manual of Mental Disorders3 in 1980 by the American Psychiatric Association. DSM-IV4 further refined the diagnosis based on extensive research into the validity of the construct. This edition had been utilized until May 2013 when the fifth edition was published. The disorder is characterized in DSM-IV as three symptom clusters that may develop after a severe psychological trauma (see Table 1). These symptom clusters include Mark B. Hamner, M.D., is a Professor of Psychiatry and Behavioral Sciences at the Medical University of South Carolina and Medical Director of the PTSD Clinic at the Ralph H. Johnson VA Medical Center in Charleston, S.C. His clinical and research interests include the assessment of PTSD and comorbidity, including psychosis, psychotherapy, and pharmacotherapy of PTSD, and other psychiatric disorders including depression and schizophrenia. He is board-certified in Psychiatry with added qualifications in Geriatric Psychiatry. He has numerous peer-reviewed publications, abstracts, and book or encyclopedia chapters. He is a Fellow of the American Psychiatric Association. neurosciences • summer 2014
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re-experiencing the trauma in nightmares, intrusive memories and other ways; avoidance of reminders of the trauma and emotional numbing; and symptoms of increased arousal. DSM-V has altered somewhat the definition of the traumatic experience and the resulting symptoms. The symptoms are expanded into four symptom clusters with the addition of a cluster involving negative alterations in cognitions and mood associated with the trauma (see Table 2). There is also a separate classification for children six years and younger in DSM-V. Importantly, it is recognized that extensive psychiatric comorbidity occurs with PTSD. This comorbidity includes depression, alcohol and other substance dependence, personality disorders such as antisocial personality, and other diagnoses as reported in the National Comorbidity Study.5 Therefore, it should be recognized that not only the diagnosis of PTSD alone has an important role in adjudicating violent crimes but also various subtypes and comorbidities must also be recognized. Many of these, e.g., substance abuse, may play a substantial role as risk factors for violent behavior.6 The potential role of alcohol abuse as a risk factor for violent behavior is further illustrated in the case vignette and represented potential mitigating evidence in this case. From an ethical standpoint as well, careful attention should be given to the potential role of these other comorbid diagnoses when the diagnosis of PTSD is introduced. It has been asserted that courts have a “misplaced confidence” in psychiatric diagnoses.7 Criminal justice systems may, therefore, overuse definitions from psychiatric classification systems. This in and of itself raises ethical issues related to the use of psychiatric
diagnoses in general in forensic settings and in the use of PTSD in particular. PTSD is included in the list of psychiatric diagnoses in which validity is now being examined for the syndromal diagnosis as well as potential subtypes.8 As such, legal systems’ faith in current categorical diagnoses (e.g., DSM-IV) may be “misplaced and unhelpful” in the administration of justice. To further complicate the issue, there may be limited agreement among consulting experts on the diagnosis of PTSD. Interestingly, the level of agreement between psychiatric experts may well vary based on the actual diagnosis. For example, there may be good inter-rater reliability on several diagnoses including acquired brain injury, schizophrenia spectrum psychoses, substance-induced psychotic disorder, and intellectual disability. There may be moderate agreement on depressive and personality disorders. There is often poor agreement on the diagnosis of PTSD as well as other anxiety disorders.9 Overall, however, the diagnosis of PTSD has arguably facilitated the assessment of victims’ and, in some cases, perpetrators’ rights, despite the frequent ambiguity about the role of this diagnosis as well as other comorbid diagnoses.10 This is further highlighted in the case vignette below.
Victims and the Diagnosis of PTSD There is an extensive literature that documents the development of PTSD after a number of types of violent crimes. In fact, the definitions of traumatic experiences both in DSM-IV (1994) and DSM-V (2013) encompass the psychological effects of violent crime. Two examples of victim populations are given below. There is a high rate of PTSD occurring as a consequence of domestic violence. One study examined
Table 1 Major PTSD Symptoms Clusters in DSM-IV The specific symptoms are described in the manual.
Table 2 Major PTSD Symptoms Clusters in DSM-V The specific symptoms are described in the manual. The symptom clusters are given for adults. There is a separate definition for children 6 years or less.
A. The person has been exposed to a traumatic experience
A. Exposure to actual or threatened death, serious injury, or sexual violence
B. The traumatic event is persistently reexperienced, e.g., with intrusive memories, nightmares and other phenomena
B. Presence of one or more intrusion symptoms associated with the traumatic event(s)
C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness
D. Negative alterations in cognitions and mood associated with the traumatic event(s)
D. Persistent symptoms of increased arousal
156
C. Persistent avoidance of stimuli associated with the traumatic event(s)
E. Marked alterations in arousal and reactivity associated with the traumatic event(s)
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the PTSD symptoms clusters as defined in DSM-IV (re-experiencing, arousal, and avoidance /numbing) in victims of intimate partner violence (N=156).11 Only the re-experiencing symptom cluster predicted interpersonal violence re-victimization but not the other clusters. This finding has significant forensic as well as treatment implications and suggests that there may need to be a particular focus on the core re-experiencing symptoms of PTSD in conducting forensic evaluations. PTSD is highly prevalent in physically injured victims of nondomestic violence as well. For example, Venke Johansen and colleagues12 conducted a longitudinal survey in individuals suffering injuries from nondomestic violent crimes (N=70). Questionnaires included specific PTSD assessments and others to
anger and impulsivity may occur in individuals with the disorder. In fact, irritability is one of the symptoms of PTSD.15 Moreover, “sudden acting or feeling as if the trauma was recurring,” characterized as flashback episodes (one of the core re-experiencing symptoms), could involve manifestations of violent behavior. So arguably, violent behavior could be affected by core PTSD symptoms. However, violence may occur in association with a number of psychiatric disorders in addition to the non-affected population. For example, domestic violence has been associated with several psychiatric disorders including alcohol and substance abuse, depression, and psychosis.16 Violence and substance use disorder comorbid with PTSD represent this challenge in forensic assessments. Emma Barett and colleagues17 assessed demographics, perpetration
An extensive systematic review recently concluded that, although psychiatric patients experience a high prevalence of domestic violence, there is limited information regarding the relative risk compared with non-psychiatric populations. Therefore, it has been discussed that courts may over use psychiatric diagnostic criteria in general to adjudicate violent crimes. In other words, the use of categorical diagnoses may not be the best descriptor of either the cause of violence or the consequences. assess level of physical injury, perceived life threat, prior experience of violence, peritraumatic dissociation, and social support. There was a high prevalence of PTSD (31%), that correlated with severity of injury or prior violence, and also with perceived life threat or low social support. This is consistent with an extensive literature finding that physical injury in the context of a psychological trauma, such as violent crime or combat, significantly increases the risk for development of PTSD, other psychiatric disorders, and associated disability.13
Perpetrators and the Diagnosis of PTSD PTSD may be a risk factor for the commission of a variety of violent crimes. As such, the diagnosis may be utilized as a basis for criminal defense. Examples include the use of PTSD as an insanity defense, in cases of dissociation or unconsciousness, diminished capacity, and in sentencing mitigation.14 The latter is illustrated in the case vignette. It should be noted that the PTSD diagnosis does not include the phenomena of violent behavior per se. In fact, the vast majority of individuals with PTSD do not have a history of violent behavior. However, neurosciences • summer 2014
of violent crime, mental health diagnoses, and PTSD symptom clusters in 102 individuals with substance use disorders. Over half had lifetime violence and 16% had committed violence in the past one month. In contrast to the study of intimate partner violence, hyperarousal symptoms were independent predictors of violence perpetration in this population. This study highlighted the importance of assessing for PTSD in individuals with substance use disorders in a forensic setting. This notion is further illustrated in the case vignette. An extensive systematic review recently concluded that, although psychiatric patients experience a high prevalence of domestic violence, there is limited information regarding the relative risk compared with non-psychiatric populations.18 Therefore, it has been discussed that courts may over use psychiatric diagnostic criteria in general to adjudicate violent crimes. In other words, the use of categorical diagnoses may not be the best descriptor of either the cause of violence or the consequences. With this in mind, an early study supported the notion that PTSD can result in violent behavior.19 This study included assessment of a large non-combat trauma population and also uti157
S Y MPO SIUM
lized dimensional measures of PTSD symptoms. This is important because the intensity and frequency of PTSD symptoms may be more relevant than just the categorical presence or absence of symptoms in the actual manifestation of violent behavior. Finally, the effect of psychiatric diagnoses on the ability to discriminate right from wrong is often at the core of criminal proceedings.19 Judgment, as assessed in the mental status examination, may be affected by a variety of psychiatric symptoms which may be included in the criteria for PTSD, including alterations in cognition and affect. The definitions of these latter symptoms have been expanded in DSM-V. This will be of particular relevance in future court decisions. However, the presence of these PTSD symptoms at the time of violence, as determined in a forensic psychiatric evaluation, rests largely on historical data.
Case Illustration The Porter v. McCollum case was argued before the Supreme Court in 2008.20 The respondent was Bill McCollum, Attorney General of Florida. Petitioner George Porter was a Korean War veteran who was wounded and decorated for his combat service. He was involved in two major engagements in the war. He had been charged and convicted by a Florida state court of two counts of first degree murder in the shooting deaths of his former girlfriend and her boyfriend. He received a death sentence. He subsequently filed for a writ of habeas corpus in a Florida Federal District court, arguing that his Sixth Amendment right to effective counsel had been violated. This district court agreed and granted the petition. On appeal, however, the U.S. Court of Appeals for the Eleventh Circuit reversed this decision on the grounds that his case was not affected by inadequate counsel. This case was brought before the Supreme Court. Of central importance in his appeal was that his commanding officer’s powerful description of the petitioner’s war service as part of the mitigating evidence had not been presented during the penalty phase of his trial in 1988. It was successfully argued that he was suffering from PTSD. It was also argued that the petitioner had suffered from child abuse and also that he had evidence for current cognitive dysfunction which may have affected his judgment. Moreover, it was discussed that his history of alcohol abuse in the context of violent behavior was also mitigating evidence. The Supreme Court reversed the Eleventh Circuit, agreeing that his Sixth Amendment right to effective counsel had been violated and that there was a reasonable probability that this affected the sentencing. A writ of habeas corpus was therefore granted to Mr. Porter.
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Biological Studies: Will They Make the Diagnosis of PTSD More Objective? The validity of the diagnosis of PTSD remains affected by the often subjective nature of the contemporaneous emotional response to the trauma as well as the associated symptoms. Psychophysiological testing as such may facilitate the diagnosis.21 This would strengthen objective diagnosis in the courtroom. Psychophysiological testing could be considered as one potential component of a forensic evaluation. A metaanalysis of psychophysiological studies in PTSD was conducted by Nnamdi Pole.22 This included baseline studies (N=58), startle studies (N=25), standardized trauma cue studies (N=17), and idiographic studies (N=22). The author assessed a number of physiological parameters in these studies including facial electromyograms (EMG), heart rate (HR), skin conductance (SC), and blood pressure (BP). Significant weighted mean effects were found in PTSD for HR and SC in baseline studies; eyeblink EMG, HR, and SC habituation slope in startle studies; HR in trauma cue studies; and frontalis EMG, corrugator EMG, HR, and SC in idiographic trauma cue studies. SC, EMG, and HR alterations were robust across all study types. It was concluded that PTSD was clearly associated with altered psychophysiological measures as compared with non-affected individuals but that the generalizability of these findings may be limited by subject populations (for example, a predominance of studies in male veterans) and lack of consideration of PTSD subtypes. In the future, PTSD litigation may also involve data from other neuroscience research. The field has not yet reached this point. It is speculated that the neural basis of PTSD, e.g., as determined by neuroimaging findings or neuroendocrine challenge studies, eventually may help to distinguish patients from non-suffering individuals. It is generally felt that, given the current state of the art, the sensitivity and specificity of biological tests are insufficient at this time.23 However, given the frequent controversy about the validity of the diagnosis in forensic settings, biological tests are of critical concern for future evaluations.
The Special Case of Children Estimating present and future damages following child maltreatment represents another challenge in the use of the PTSD diagnosis. Plaintiffs in civil lawsuits regarding child maltreatment require careful assessment for PTSD phenomena. These forensic evaluations, potentially involving children, require special expertise and knowledge of current research findings, evidence-based treatments for psychological trauma, and knowledge of the ethics and laws governjournal of law, medicine & ethics
Mark B. Hamner
ing mental health expert practice and testimony in personal injury litigation.24 Childhood sexual abuse in particular represents a unique challenge. The diagnosis of PTSD in these cases still is dependent on the child’s recall of the traumatic event since medical examination or other objective evaluations may not yield adequate evidence.25 Exposure to domestic violence also has far-reaching implications for the child. These implications may include increase risk for sexual or physical abuse, development of a number of emotional problems including PTSD, and later risk for additional traumas.26 Moreover, there may be an increased risk for medical disorders as well as psychiatric diagnoses in addition to PTSD in affected children.27 These additional effects may be mediated in part by chronic alterations in the hypothalamic-pituitary-adrenal axis, which is considered a critical biological system in mediating stress-response.28
Summary This brief paper has highlighted several ethical and clinical considerations that are relevant in introducing the diagnosis of PTSD in criminal proceedings. These arguments pertain to both victims and perpetrators of violence. The cases involving children represent unique challenges. The reliability and validity of the PTSD diagnosis may be questioned. Legal precedent should consider extant diagnostic criteria for PTSD and co-morbid diagnoses. However, these diagnostic criteria are often in flux considering new research findings. PTSD has significant psychiatric co-morbidity, which may influence violent behavior. Some of these co-morbid diagnoses also have alterations in their diagnostic criteria with new revisions of the DSM. This is especially relevant with the recent publication of DSM-V. The utilization of biological tests in the assessment of PTSD will likely facilitate more objective diagnosis. Moreover, advances in the neurosciences may eventually lead to better understanding of the neurobiological substrates of violence in general. This may then complement the use of categorical psychiatric diagnoses. However, the state of the art of biological measures does not yet justify their use in PTSD diagnostic criteria. Finally, the effect of psychiatric diagnoses, including PTSD, on the ability to discriminate right from wrong is often at the core of criminal proceedings. Acknowledgements
This paper was presented in part at the 2012 Thomas A. Pitts Lectureship in Medical Ethics, Medical University of South Carolina. The author wishes to thank the anonymous reviewers for their helpful suggestions.
neurosciences • summer 2014
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