By Abhishek Choudhary and Aditya Shekhar
“They carried all they could bear, and then some, including a silent awe foe the terrible power of the things they carried.”- Tim O’Brien, The Things They Carried.[1]
INTRODUCTION
Traumatic events have the potential to generate a psychiatric disorder i.e. Post-Traumatic Stress Disorder, popularly known as PTSD. War, rape, abuse or violent personal assault, natural disaster, domestic violence, accident, etc. can all lead to this psychiatric condition. Since, the root cause of PTSD can be anything, debunking PTSD becomes an important task. Symptoms vary over time and vary from person to person.[2] However the core cause of PTSD is still a medical mystery.[3] Thus, the issue of the use of PTSD as a defense in criminal law must be addressed with proper precision.
Through this article, the authors have tried to debunk the mystery behind PTSD cases. The complex medico-legal aspects have been simplified to awaken the audience and spread the concern of having an effective judicial system dealing with Veterans and mental health cases.
POST TRAUMATIC STRESS DISORDER AND ITS RECOGNITION IN A TRAIL.
In the legal world, PTSD most often comes up as part of a defense against criminal charges and is commonly used as a part of a defense strategy against insanity, diminished capacity, or as a mitigating factor during sentencing. A PTSD diagnosis can make a significant difference in the outcome of a trial. Most of the PTSD cases revolve around veterans suffering from PTSD. In criminal trials, PTSD is unique among mental disorders in its invocation not only among the defense but also by the prosecution. The presence of PTSD in a victim, e.g., in the form of “rape trauma syndrome”, may be cited by the prosecution as evidence supporting the actual occurrence of the alleged criminal act.[4] The factors which summarized PTSD related to criminal defense, was outlined based on a literature review by Pitman in 1996.
Even before the PTSD was included in DSM and ICD, traumatic stress was a recognized insanity defense.[5]
POST TRAUMATIC STRESS DISORDER AS INSANITY DEFENSE
Insanity is one of the general exceptions to criminal liability. Section 84 of the Indian Penal Code, 1860,[6] talks about insanity as a defense. Section 84 reads as, ‘Act of a person of unsound mind.—Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.’[7] The principle of mens rea comes into picture. Even before posttraumatic stress disorder (PTSD) became an official diagnosis, traumatic stress syndromes, such as traumatic neurosis of war, were successfully offered as bases for criminal defenses.[8]
The fact that the different jurisdictions employ different approaches to insanity has important implications for the accused who are diagnosed with PTSD. When the combat-related PTSD individuals psychologically relive the traumatic situation(s), they may be cognitively aware of their actions but unable to control their behavior as, during the interview and clinical observation, people with PTSD often believe they are in combat and react with violence as in a real combat situation. Hence, such individuals may be eligible for acquittal in a jurisdiction that has retained the violation component of insanity defense.[9] The burden of proof in insanity cases can be broken into two components: i) burden of production and ii) burden of persuasion. The burden of production lies on the prosecution to establish beyond a reasonable doubt before a criminal conviction can be obtained. However, the burden of persuasion can be upon the prosecution as well as the accused. The burden of persuasion on the accused requires him to introduce evidence creating a reasonable doubt of his sanity. Hence, even if the diagnosis of PTSD is recognized as a valid foundation for the insanity defense under a test of insanity and some evidence exists regarding the requisite linkage of the mental disorder to a cognitive or volitional impairment, the courts vary as to whether the prosecution of the accused bears the burden of persuasion, a difference that can lead to dramatically different outcomes.[10]
VETERANS AND POST TRAUMATIC STRESS DISORDER
Indian criminal justice system lacks expertise in this field and is highly ill-equipped to handle such cases. Veterans Treatment Courts are the brainchild of Judge Robert Russell, an associate judge in Buffalo’s City Court, America.[11] The establishment of such Veteran Treatment Courts is the need of the hour. These courts would help in expeditiously solve cases concerning Veteran’s mental health, PTSD and such related issues.
War veterans and their mental health should be the primary concern for us. The Veteran Treatments Court was established in America to provide a tailored remedy to the veterans who are the most part of the society in terms of PTSD, substance and alcohol abuse and mental health deterioration. A study made on Vietnam veterans concludes that the relationship between PTSD and “violent behaviour” is “causally important”.[12] Research suggests that inmates with PTSD were 6.75 times more likely to have been arrested for a violent crime than those without PTSD.[13] The veterans with PTSD re-experience trauma in “survivor mode”.[14] The “survivor mode” is manifested in three different ways leading to crime: depression suicide syndrome, sensation-seeking syndrome, and dissociative syndrome.[15] These syndromes manifest themselves in various forms and behaviors such as aggression, risk-taking, and reacting violently towards oneself or others due to perceived suffering, all of which can tend to criminalized conduct.[16]
POST TRAUMATIC STRESS DISORDER IN INDIAN CONTEXT
The recently drafted Mental Healthcare Act, 2017[17] defines “mental illness” under Section 2(s)[18] as a disorder in thinking which severely impairs the behaviour, judgment and cognitive capacity of the individual to recognize reality.[19] Mental illness also constitutes a disorder of mood, perception, orientation and memory.[20] However, the definition does not include mental retardation which is a condition of incomplete development of the mind of a person.[21] Such mental retardation is characterized by subnormality of intelligence.[22]
The aforementioned Act is in resonance with the United Nations Convention on Rights of Persons with Disabilities[23] to which India is a signatory. The new definition of PTSD according to DSM-5, which also India refers to, has placed PTSD under Trauma and Stressor related Disorders which is in entirety a separate chapter. The list of symptoms now also includes intrusive symptoms, avoidance of stimuli associated with the traumatic event, and alteration in arousal and reactivity, which ultimately boils down to negative thoughts and emotions associated with the traumatic event.[24] It is also stated that PTSD can be branched and helped to support the arguments of ‘battered women syndrome’ and ‘battered child syndrome’.
Although it may seem that the wider ambit of the definition of PTSD makes it difficult for the court to reach a conclusive definition, yet the new definition definitely tunes in the justice system with the idea of fairness. Indian Criminal Justice System has been criticised immensely for being obtuse. However, the various advancements in medical science in particular and science and technology, in general, cannot be ignored.
In the case of Indeevarakshan Nair M P & Others v. Officer I C Records A S C Records MT & Others[25], has recognized PTSD as a medical condition which must be taken into consideration while deciding cases pertaining to soldiers and army personnel. In brief, the case dealt with the attribution of Invaliding Disease with military services and outlined the course of action. PTSD was recognized as an acceptable medical condition. While dissecting the relationships between PTSD and Criminal behaviour; substance abuse and antisocial personality have been discovered as contributory factors.
SUGGESTIONS
The Indian Criminal Justice system needs to address the yet unexplored issue of mental health cases and PTSD urgently. It is a fact that mental ailments are heavily ignored in Indian society and such cases are scarcely reported. The establishment of Veteran Treatment courts would be extremely helpful in solving cases relating to veterans in particular. Mental health in general and PTSD, in particular, should be dealt with much precision owing to the unique and unpredictable situations which have a high frequency to pop up while dealing with PTSD patients. With the rapid rise in mental health cases and humungous recognition of the mental health conditions clearly suggest that the next generation needs to have an effective judicial system to deal with cases pertaining to mental health; PTSD being one of the major issues.
CONCLUSION
Diagnosing PTSD in adults, adolescents, and children older than 6 years of age using the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) requires a certain type and level of traumatic event, a combination of required symptoms, and the absence of exclusionary criteria. The new definition caused some controversy. The DSM-5 has separated the “avoidance and numbing” cluster into two categories and has included “avoidance” and “persistent negative changes in cognition and mood.” Additionally, the cluster referring to “changes in arousal and reactivity” has been broadened to include additional symptoms such as angry outbursts, irritability, and self-destructive or reckless behaviour. Thus, now criminal prosecutors in particular claim that it is now easier than ever for expert witness testimony to establish PTSD, which will lead to an increase in the use of PTSD as a part of their criminal defense. Apart from this controversy in the ambit of interpretation of PTSD as a criminal defense, we cannot deny that PTSD is a legitimate medical condition and will its use as a part of legal defense is equally important.
[1] Tim O’Brien, The Things They Carried, 7 (Mariner 2009).
[2]https://www.psychiatry.org/patients-families/ptsd/what-is-ptsd last visited on 13/01/2020 at 20:29 IST.
[3]https://www.mayoclinic.org/diseases-conditions/post-traumatic-stress-disorder/symptoms-causes/syc-20355967 last visited on 13/01/2020 at 20:36 IST
[4] Roger K. Pitman, PTSD and the Law, PTSD Research Quarterly, Vol 9, 1998.
[5] Vito Zepinic, Posttraumatic Stress Disorder in Courtroom: Insanity Defense, AJAP 2017.
[6] Section 84, Indian Penal Code, 1860.
[7] Id.
[8] Jordan HW, Howe GL, et al: Post-traumatic Stress Disorder: A Psychiatric Defense. J Natl Med Association, 1986.
[9] Vito Zepinic, Posttraumatic Stress Disorder in Courtroom: Insanity Defense, AJAP 2017.
[10] Id.
[11] T. De Angelis A History of Treatment Courts, American Psychological Association. https://www.apa.org/monitor/2012/03/treatment last visited 23:29 IST.
[12] Andrea Friel et al., Posttraumatic Stress Disorder and Criminal Responsibility, 191 J. Forensic Psychiatry & Psychol. 64, 81 (2007).
[13] Huskey, Kristine A. “Reconceptualizing ‘the Crime’ in Veterans Treatment Courts.” Federal Sentencing Reporter, vol. 27, no. 3, 2015, pp. 178–186. JSTOR, http://www.jstor.org/stable/10.1525/fsr.2015.27.3.178. Accessed 13 Jan. 2020.
[14] John P. Wilson & Sheldon D. Zigelbaum, The Vietnam Veteran on trail: The Relation of Post-Traumatic stress Disorder to Criminal Behaviour, 1 Behav. Sci. & L. 69, 70(1983).
[15] Id.
[16] Supra note 23.
[17] Mental Healthcare Act, 2017.
[18] Section 2(s), Mental Healthcare Act, 2017.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23]https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html last visited on 9/1/2020 on 09/01/2020 at 17:43 IST.
[24] https://journalofethics.ama-assn.org/article/evolving-definition-posttraumatic-stress-disorder-legal-ramifications/2013-10 last visited on 09/1/2020 at 18:02 IST.
[25] Indeevarakshan Nair M P & Others Ex No 13875382 Rect Kerala v. Officer I C Records A S C Records MT & Others LNIND 2010 AFTRBKOC 56.
[The co-authors are second-year law students at National Law University, Jodhpur.]
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