The watering down of PTSD in criminal law

Journal of Psychiatry and Law

Volumn 32, Issue 3, 2004, Pages 411-438

  Slovenko, Ralph ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

BATTERED CHILD SYNDROME; BATTERED WOMAN; CRIMINAL LAW; DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS; DISEASE COURSE; DISSOCIATIVE DISORDER; HOLOCAUST SYNDROME; PATHOGENESIS; POLICE; POLICEMAN SYNDROME; POSTTRAUMATIC STRESS DISORDER; PSYCHIATRY; REVIEW; WAR;

EID: 14644437792     PISSN: 00931853     EISSN: None     Source Type: Journal    
DOI: 10.1177/009318530403200313     Document Type: Review

References (78)

1. Webster's Second New College Dictionary.
2. For a discussion of trauma as metaphor, see E. Hoffman, After Such Knowledge (New York: Public Affairs, 2004).
3. DSM-II had eliminated gross stress reactions, including combat stress, and replaced them with "(transient) adjustment reactions to adult life." DSM-IV of 1994 introduced a new diagnosis, "acute stress disorder," when the symptoms occur within four weeks of the traumatic event and the symptoms last for two days to a month. It is listed among anxiety disorders, to manifest its association with PTSD. Studies in the aftermath of such events as earthquakes found widespread dissociative phenomena, including depersonalization, derealization, and alterations in memory and the perception of time linked to the intensity of experienced stress. As in the formulation of PTSD, acute stress disorder just follow the experience or witnessing of an event threatening oneself or others with death, serious injury, or damage to physical integrity, and must cause marked fear, helplessness, or horror. To make the diagnosis, three of five dissociative symptoms (derealization, depersonalization, numbing, amnesia, or reduced awareness of surroundings) must be present, in addition to intrusive re-experiencing of the event, avoidance, and hyperarousal. Acute stress disorder signals a high risk of later PTSD.
4. The role of psychiatric diagnosis in the legal process is discussed in R. Slovenko, "The Role of Psychiatric Diagnosis in the Law," J. Psychiatry & Law 30(2002):421. See also S.A. Greenberg, D.W. Shuman & R.G. Meyer, "Unmasking Forensic Diagnosis," Int'l J. Law & Psychiatry 27(2004):1; D. Mossman, "Psychiatry in the Courtroom," Public Interest 150(Winter 2003):22.
5. The role of psychiatric diagnosis in the legal process is discussed in R. Slovenko, "The Role of Psychiatric Diagnosis in the Law," J. Psychiatry & Law 30(2002):421. See also S.A. Greenberg, D.W. Shuman & R.G. Meyer, "Unmasking Forensic Diagnosis," Int'l J. Law & Psychiatry 27(2004):1; D. Mossman, "Psychiatry in the Courtroom," Public Interest 150(Winter 2003):22.
6. The role of psychiatric diagnosis in the legal process is discussed in R. Slovenko, "The Role of Psychiatric Diagnosis in the Law," J. Psychiatry & Law 30(2002):421. See also S.A. Greenberg, D.W. Shuman & R.G. Meyer, "Unmasking Forensic Diagnosis," Int'l J. Law & Psychiatry 27(2004):1; D. Mossman, "Psychiatry in the Courtroom," Public Interest 150(Winter 2003):22.
7. Following the first trial, the Louisiana Supreme Court, 370 So.2d 564 (1979), affirmed the conviction, but the U.S. Supreme Court, 444 U.S. 1008 (1980), vacated the judgment and remanded the case for further consideration. On remand, the Louisiana Supreme Court, 385 So.2d 230 (1980), remanded the case to the trial court in regard to the instruction given the jury. He was found not guilty by reason of insanity. State v. Heads, No. 106, 126 (1st Jud. Dist. Ct., Caddo Parish, Oct. 10, 1981); see R. Stuart, "Veteran's Case Puts Focus on Vietnam Syndrome," New York Times, Feb. 26, 1982, p. 16.
8. See P.A. Appelbaum, R.Z. Jick, T. Grisso, D. Givelber, E. Silver & H.J. Steadman, "Use of Posttraumatic Stress Disorder to Support an Insanity Defense," Am. J. Psychiatry 150(1993):229.
9. Statistics on the incidence of a defense are problematical. If the defendant is acquitted, there is no appeal, and dispositions in state trial courts (unlike federal trial courts) are essentially beyond study. In United States v. Gonzalez, 2004 WL 230992 (S.D. N.Y. 2004), the court said that while PTSD alone is insufficient to grant a sentencing departure under the sentencing guidelines, when compounded by parental abandonment, the court may go below the sentencing guidelines. In People v. Griffith, 777 N.E.2d 459 (Ill. App. 2002), the defendant was charged with murder and raised PTSD as a defense-he was convicted. In People v. Weaver, 111 Cal. Rptr. 2d 2 (Cal. 2001), a Vietnam veteran convicted of murder had raised PTSD during the sanity and penalty phases of his trial-his appeal was denied. In People v. Saldivar, 113 Ill.2d 256, 497 N.E.2d 1138 (1986), PTSD was used as a mitigating factor to reduce the sentence. In State v. Twelves, 463 So.2d 493 (Fla. App. 1985), it was held that the trial court acted within its discretion in suspending sentence where the defendant suffered from PTSD and could be treated. In People v. Lockett, 121 Misc.2d 459 (N.Y. 1983), the defendant pleaded not guilty by reason of insanity to a charge of robbery, claiming that he suffered from PTSD as a result of his experiences in Vietnam-the court granted a motion to vacate the plea upon learning that the defendant had not actually served in Vietnam. Discussions of PTSD as a defense to various offenses appear in M.J. Davidson, "Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of a Controversial War," Wm. & Mary L. Rev. 29(1988):415; P. Erlinder, "Paying the Price for Vietnam Post-Traumatic Stress Disorder and Criminal Behavior," Boston College L. Rev. 25(1984):305.
10. Statistics on the incidence of a defense are problematical. If the defendant is acquitted, there is no appeal, and dispositions in state trial courts (unlike federal trial courts) are essentially beyond study. In United States v. Gonzalez, 2004 WL 230992 (S.D. N.Y. 2004), the court said that while PTSD alone is insufficient to grant a sentencing departure under the sentencing guidelines, when compounded by parental abandonment, the court may go below the sentencing guidelines. In People v. Griffith, 777 N.E.2d 459 (Ill. App. 2002), the defendant was charged with murder and raised PTSD as a defense-he was convicted. In People v. Weaver, 111 Cal. Rptr. 2d 2 (Cal. 2001), a Vietnam veteran convicted of murder had raised PTSD during the sanity and penalty phases of his trial-his appeal was denied. In People v. Saldivar, 113 Ill.2d 256, 497 N.E.2d 1138 (1986), PTSD was used as a mitigating factor to reduce the sentence. In State v. Twelves, 463 So.2d 493 (Fla. App. 1985), it was held that the trial court acted within its discretion in suspending sentence where the defendant suffered from PTSD and could be treated. In People v. Lockett, 121 Misc.2d 459 (N.Y. 1983), the defendant pleaded not guilty by reason of insanity to a charge of robbery, claiming that he suffered from PTSD as a result of his experiences in Vietnam-the court granted a motion to vacate the plea upon learning that the defendant had not actually served in Vietnam. Discussions of PTSD as a defense to various offenses appear in M.J. Davidson, "Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of a Controversial War," Wm. & Mary L. Rev. 29(1988):415; P. Erlinder, "Paying the Price for Vietnam Post-Traumatic Stress Disorder and Criminal Behavior," Boston College L. Rev. 25(1984):305.
11. It may also be noted that in civil litigation involving a claimant seeking compensation for psychological injury allegedly caused by the act of the person being sued, a diagnosis of PTSD is the "diagnosis of choice," as the court labeled it in Perkins v. General Motors, 709 F. Supp. 1487 (W.D. Mo. 1989). Because PTSD focuses on the stressor (unlike a diagnosis of depression), it is a favorite diagnosis of attorneys representing claimants. Then too, in seeking medical care at Veterans Administration hospitals, veterans have often claimed PTSD, quite frequently as a pretext to get otherwise unavailable treatment. By claiming that a condition is service-connected, a veteran becomes eligible for treatment at a VA hospital. Moreover, a veteran deemed to be fully disabled by PTSD can receive $2,000 to $3,000 a month, tax free. Some have called PTSD "post-dramatic stress disorder."
12. An expert is not permitted to testify straightaway that a particular stressor occurred, but may do so in a roundabout way. The expert may testify in an alleged child sexual abuse case, for example, that the victim's behavior is "consistent with" that of a sexually abused child. People v. Peterson, 450 Mich. 349, 537 N.W.2d 857 (1995). See R. Slovenko, "Syndrome Evidence in Establishing a Stressor," J. Psychiatry & Law 12(1984):443; see also T.M. Massaro, "Experts, Psychology, Credibility, and Rape; The Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony," Minn. L. Rev. 69(1985):395; D. McCord, "Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Non-traditional Psychological Evidence in Criminal Cases," Or. L. Rev. 66(1987):19.
13. An expert is not permitted to testify straightaway that a particular stressor occurred, but may do so in a roundabout way. The expert may testify in an alleged child sexual abuse case, for example, that the victim's behavior is "consistent with" that of a sexually abused child. People v. Peterson, 450 Mich. 349, 537 N.W.2d 857 (1995). See R. Slovenko, "Syndrome Evidence in Establishing a Stressor," J. Psychiatry & Law 12(1984):443; see also T.M. Massaro, "Experts, Psychology, Credibility, and Rape; The Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony," Minn. L. Rev. 69(1985):395; D. McCord, "Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Non-traditional Psychological Evidence in Criminal Cases," Or. L. Rev. 66(1987):19.
14. An expert is not permitted to testify straightaway that a particular stressor occurred, but may do so in a roundabout way. The expert may testify in an alleged child sexual abuse case, for example, that the victim's behavior is "consistent with" that of a sexually abused child. People v. Peterson, 450 Mich. 349, 537 N.W.2d 857 (1995). See R. Slovenko, "Syndrome Evidence in Establishing a Stressor," J. Psychiatry & Law 12(1984):443; see also T.M. Massaro, "Experts, Psychology, Credibility, and Rape; The Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony," Minn. L. Rev. 69(1985):395; D. McCord, "Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Non-traditional Psychological Evidence in Criminal Cases," Or. L. Rev. 66(1987):19.
15. F. Crews, "The Trauma Trap," New York Review of Books, March 11, 2004, p. 37. Multi-million-dollar jury awards or settlements have been made against therapists who have engaged in "revival of memory" of childhood sexual abuse and made a diagnosis of multiple personality disorder. Jury awards: Hamanne v. Humenansky, U.S. District Court, 2d Dist., MN, No. C4-94-203 ($2.46 million); Carlson v. Humenansky, District Court, 2d Dist., MN, No. CX-93-7260 ($2.5 million); Carl v. Keraga, U.S. District Court, So. Dist., Texas, No. H-95-661 ($5.8 million); Sawyer v. Middlefort, 595 N.W.2d 423 (Wis. 1999) ($5.08 million); Gale v. Rush-Presbyterian-St. Luke's Medical Center, Circuit Court, Cook Cy., Ill., No. 03L12779 ($7.5 million); Settlements: Fultz v. Carr & Walker, Circuit Court, Multnomah Co., Oregon, No. 9506-04080 ($1.57 million); Rutherford v. Strand, Circuit Court, Green Co., Missouri, No. 1960c2745 ($1 million); Cool v. Olson, Circuit Court, Outagamie Cy., Wisconsin, No. 94CV707 ($2.7 million); Burgus v. Braun & Rush-Presbyterian, Circuit Court, Cook Cy., Ill., No. 91L08493/93L14050 ($10.6 million).
16. See, e.g., J.D. Bremmer, "Neuroimaging of Posttraumatic Stress Disorder," Psychiatric Annals 28(1998):445. See also B.A. Van der Kolk, "The Body Keeps the Score: Memory and the Evolving Psychobiology of Posttraumatic Stress," Harv. Rev. Psychiatry 1(1994):253.
17. See, e.g., J.D. Bremmer, "Neuroimaging of Posttraumatic Stress Disorder," Psychiatric Annals 28(1998):445. See also B.A. Van der Kolk, "The Body Keeps the Score: Memory and the Evolving Psychobiology of Posttraumatic Stress," Harv. Rev. Psychiatry 1(1994):253.
18. E.S. Milstein & K.D. Snyder, "PTSD/The War Is Over, the Battles Go On," Trial, Jan. 1983, p. 86.
19. The search for biological measures of a psychological disorder transcends the study of PTSD and has been the focus of considerable interest of psychobiologists and biological psychiatrists. A psychological challenge can provoke systematic physiological responses across several measurement domains (e.g., heart rate, skin conductance, EMG, blood pressure). See G. Mendelson, Psychiatric Aspects of Personal Injury Claims (Springfield, Ill.: Thomas, 1988); C.B. Scrignar, Post-Traumatic Stress Disorder/Diagnosis, Treatment and Legal Issues (New Orleans: Bruno Press, 3d ed., 1996); R.I. Simon (ed.), Posttraumatic Stress Disorder in Litigation/Guidelines for Forensic Assessment (Washington, D.C.: American Psychiatric Press, 1995).
20. The search for biological measures of a psychological disorder transcends the study of PTSD and has been the focus of considerable interest of psychobiologists and biological psychiatrists. A psychological challenge can provoke systematic physiological responses across several measurement domains (e.g., heart rate, skin conductance, EMG, blood pressure). See G. Mendelson, Psychiatric Aspects of Personal Injury Claims (Springfield, Ill.: Thomas, 1988); C.B. Scrignar, Post-Traumatic Stress Disorder/Diagnosis, Treatment and Legal Issues (New Orleans: Bruno Press, 3d ed., 1996); R.I. Simon (ed.), Posttraumatic Stress Disorder in Litigation/Guidelines for Forensic Assessment (Washington, D.C.: American Psychiatric Press, 1995).
21. The search for biological measures of a psychological disorder transcends the study of PTSD and has been the focus of considerable interest of psychobiologists and biological psychiatrists. A psychological challenge can provoke systematic physiological responses across several measurement domains (e.g., heart rate, skin conductance, EMG, blood pressure). See G. Mendelson, Psychiatric Aspects of Personal Injury Claims (Springfield, Ill.: Thomas, 1988); C.B. Scrignar, Post-Traumatic Stress Disorder/Diagnosis, Treatment and Legal Issues (New Orleans: Bruno Press, 3d ed., 1996); R.I. Simon (ed.), Posttraumatic Stress Disorder in Litigation/Guidelines for Forensic Assessment (Washington, D.C.: American Psychiatric Press, 1995).
22. C.P. Erlinder, "Paying the Price for Vietnam: Post-Traumatic Stress Disorder and Criminal Behavior," B.C.L. Rev. 25(1984):305.
23. Of course, the definition of mental illness is only the threshold question-the required consequences (impact on cognition or control) of that mental illness are different in the law on civil commitment or criminal responsibility.
24. Laws v. Armontrout, 490 U.S. 1040 (1989).
25. Id. at 1040-41.
26. Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990).
27. Id. at 593.
28. State v. Perry, 1995 U.S. Dist. LEXIS 4472 (N. Neb. 1995).
29. D.L. Goldklang, "Post-traumatic Stress Disorder and Black Rage: Clinical Validity, Criminal Responsibility," Va. J. Social Policy & Law 5(1997):213; J. Woo, "Urban Trauma Mitigates Guilt, Defenders Say," Wall Street Journal, April 27, 1993, p. B-1.
30. D.L. Goldklang, "Post-traumatic Stress Disorder and Black Rage: Clinical Validity, Criminal Responsibility," Va. J. Social Policy & Law 5(1997):213; J. Woo, "Urban Trauma Mitigates Guilt, Defenders Say," Wall Street Journal, April 27, 1993, p. B-1.
31. J.F. Sneirson, "Black Rage and the Criminal Law: A Principled Approach to a Polarized Debate," U. Pa. L. Rev. 143(1995):2251.
32. O. Rank, The Trauma of Birth (New York: Basic Books, 1952). Sigmund Freud pointed out that in the womb stimulation is modulated and controlled, but at birth there is a sudden bewildering increase in stimulation that must be experienced as unpleasurable. Freud called this a "traumatic moment"-in fact, the original traumatic moment. See M. Kahn, Basic Freud/Psychoanalytic Thought for the Twenty-First Century (New York: Basic Books, 2002), p. 110.
33. O. Rank, The Trauma of Birth (New York: Basic Books, 1952). Sigmund Freud pointed out that in the womb stimulation is modulated and controlled, but at birth there is a sudden bewildering increase in stimulation that must be experienced as unpleasurable. Freud called this a "traumatic moment"-in fact, the original traumatic moment. See M. Kahn, Basic Freud/Psychoanalytic Thought for the Twenty-First Century (New York: Basic Books, 2002), p. 110.
34. J. Goodall, Reason for Hope (New York: Warner Books, 1999), p. 1.
35. Personal communication (Jan. 12, 2002).
36. See J. Mark, Book Reviews, Psychiatric Services 55(April 2004):456.
37. A.M. Dershowitz, The Abuse Excuse (Boston: Little, Brown, 1994).
38. A syndrome is defined as a "grouping of signs and symptoms, based on their frequent co-occurrence, that may suggest a common underlying pathogenesis, course, familial pattern, or treatment selection." DSM-IV, p. 771.
39. D.W. Shuman, "The Diagnostic and Statistical Manual of Mental Disorders in the Courts," Bull. Am. Acad. Psychiatry & Law 17(1989):25.
40. A. Kardiner, "Traumatic Neuroses of War," in S. Arieti (ed.), American Handbook of Psychiatry (New York: Basic Books, 1969), pp. 246-257.
41. Werner v. State, 711 S.W.2d 639, 649 (Tex. Crim. App. 1986).
42. F. Crews, "The Trauma Trap," New York Review of Books, March 11, 2004, p. 37. The watering down of PTSD as a diagnosis has been widely criticized. Dr. Robert C. Larson, director of the Center for Occupational Psychiatry in San Francisco, has written: "PTSD has become the diagnosis of choice in so many cases that the population of individuals with it has become far too heterogeneous. No longer is it merely a diagnosis for patients who clearly have been traumatized by such things as acts of war, violent assault, torture, severe motor vehicle accidents, or natural disasters. . . . There is no longer a premise that the trauma should be outside the range of normal human experience." R.C. Larsen, "'Watering Down' PTSD," Clinical Psychiatry News, Nov. 1995, p. 8.
43. F. Crews, "The Trauma Trap," New York Review of Books, March 11, 2004, p. 37. The watering down of PTSD as a diagnosis has been widely criticized. Dr. Robert C. Larson, director of the Center for Occupational Psychiatry in San Francisco, has written: "PTSD has become the diagnosis of choice in so many cases that the population of individuals with it has become far too heterogeneous. No longer is it merely a diagnosis for patients who clearly have been traumatized by such things as acts of war, violent assault, torture, severe motor vehicle accidents, or natural disasters. . . . There is no longer a premise that the trauma should be outside the range of normal human experience." R.C. Larsen, "'Watering Down' PTSD," Clinical Psychiatry News, Nov. 1995, p. 8.
44. In fact, Anna Freud in 1967 expressed great concern about the confusion and abuse of the term "trauma," which, like other concepts used carelessly, would "in the course of time, lead inevitably to a blurring of meaning and finally to abandonment and loss of a valuable concept." She reflected on how she would limit her use of the term: "Like everyone else, I have tended to use the term 'trauma' rather loosely up to now, but I shall find it easier to avoid this in the future. Whenever I am tempted to call an event in a child's or adult's life 'traumatic,' I shall ask myself some further questions. Do I mean that the event was upsetting; that it was significant for altering the course of further development; that it was pathogenic? Or do I really mean traumatic in the strictest sense of the word, i.e., shattering, devastating, causing internal disruption by putting ego functioning and ego meditation out of action." A. Freud, "Comment on Trauma," in S.S. Fürst (ed.), Psychic Trauma (New York: Basic Books, 1967), pp. 235, 241; quoted in H. Krystal, Integration and Self-Healing (Hillsdale, N.J.: Analytic Press, 1988), p. 140. Depending upon their interpretation of the stressor criterion in the DSM, psychiatrists tend to underdiagnose or overdiagnose in PTSD cases. The "big boom" adherents insist that only traumas such as wars, explosions or natural disasters can precipitate PTSD and typically assert that individuals who have not been subjected to an enormous trauma are most likely malingerers. At the other end of the spectrum are psychiatrists who diagnose minor insults to the personality as PTSD. These divergent opinions set the stage for the so-called battle of the experts and disillusionment in the minds of the public about psychiatric testimony. In his classic writings, Dr. C.B. Scrignar maintains that a mental disorder is not PTSD (for treatment or legal purposes) unless caused by a life-threatening event. He points out the important elements precipitating PTSD: environmental stimulus, realistic threat, perception by the five senses, cognitive awareness, activation of the sympathetic nervous system, vulnerability, and zone of danger. Coming together, these factors result in what Dr. Scrignar calls the "traumatic principle," which states: Any environmental stimulus which poses a realistic threat to life or limb, impacting on one, or more likely a combination of the five sensory pathways to the brain, if perceived and cognitively interpreted as dangerous (a serious threat to life or physical integrity to self or others) and followed by intense stimulation of the sympathetic nervous system, whether it produces physical injury or not, can be regarded as a traumatic event which can precipitate PTSD in a vulnerable individual who is in the zone of danger. C.B. Scrignar, Post-Traumatic Stress Disorder (New Orleans: Bruno Press, 3d ed., 1996). See also R. Slovenko, Psychiatry in Law/Law in Psychiatry (New York: Brunner-Routledge, 2002), pp. 451-471.
45. In fact, Anna Freud in 1967 expressed great concern about the confusion and abuse of the term "trauma," which, like other concepts used carelessly, would "in the course of time, lead inevitably to a blurring of meaning and finally to abandonment and loss of a valuable concept." She reflected on how she would limit her use of the term: "Like everyone else, I have tended to use the term 'trauma' rather loosely up to now, but I shall find it easier to avoid this in the future. Whenever I am tempted to call an event in a child's or adult's life 'traumatic,' I shall ask myself some further questions. Do I mean that the event was upsetting; that it was significant for altering the course of further development; that it was pathogenic? Or do I really mean traumatic in the strictest sense of the word, i.e., shattering, devastating, causing internal disruption by putting ego functioning and ego meditation out of action." A. Freud, "Comment on Trauma," in S.S. Fürst (ed.), Psychic Trauma (New York: Basic Books, 1967), pp. 235, 241; quoted in H. Krystal, Integration and Self-Healing (Hillsdale, N.J.: Analytic Press, 1988), p. 140. Depending upon their interpretation of the stressor criterion in the DSM, psychiatrists tend to underdiagnose or overdiagnose in PTSD cases. The "big boom" adherents insist that only traumas such as wars, explosions or natural disasters can precipitate PTSD and typically assert that individuals who have not been subjected to an enormous trauma are most likely malingerers. At the other end of the spectrum are psychiatrists who diagnose minor insults to the personality as PTSD. These divergent opinions set the stage for the so-called battle of the experts and disillusionment in the minds of the public about psychiatric testimony. In his classic writings, Dr. C.B. Scrignar maintains that a mental disorder is not PTSD (for treatment or legal purposes) unless caused by a life-threatening event. He points out the important elements precipitating PTSD: environmental stimulus, realistic threat, perception by the five senses, cognitive awareness, activation of the sympathetic nervous system, vulnerability, and zone of danger. Coming together, these factors result in what Dr. Scrignar calls the "traumatic principle," which states: Any environmental stimulus which poses a realistic threat to life or limb, impacting on one, or more likely a combination of the five sensory pathways to the brain, if perceived and cognitively interpreted as dangerous (a serious threat to life or physical integrity to self or others) and followed by intense stimulation of the sympathetic nervous system, whether it produces physical injury or not, can be regarded as a traumatic event which can precipitate PTSD in a vulnerable individual who is in the zone of danger. C.B. Scrignar, Post-Traumatic Stress Disorder (New Orleans: Bruno Press, 3d ed., 1996). See also R. Slovenko, Psychiatry in Law/Law in Psychiatry (New York: Brunner-Routledge, 2002), pp. 451-471.
46. In fact, Anna Freud in 1967 expressed great concern about the confusion and abuse of the term "trauma," which, like other concepts used carelessly, would "in the course of time, lead inevitably to a blurring of meaning and finally to abandonment and loss of a valuable concept." She reflected on how she would limit her use of the term: "Like everyone else, I have tended to use the term 'trauma' rather loosely up to now, but I shall find it easier to avoid this in the future. Whenever I am tempted to call an event in a child's or adult's life 'traumatic,' I shall ask myself some further questions. Do I mean that the event was upsetting; that it was significant for altering the course of further development; that it was pathogenic? Or do I really mean traumatic in the strictest sense of the word, i.e., shattering, devastating, causing internal disruption by putting ego functioning and ego meditation out of action." A. Freud, "Comment on Trauma," in S.S. Fürst (ed.), Psychic Trauma (New York: Basic Books, 1967), pp. 235, 241; quoted in H. Krystal, Integration and Self-Healing (Hillsdale, N.J.: Analytic Press, 1988), p. 140. Depending upon their interpretation of the stressor criterion in the DSM, psychiatrists tend to underdiagnose or overdiagnose in PTSD cases. The "big boom" adherents insist that only traumas such as wars, explosions or natural disasters can precipitate PTSD and typically assert that individuals who have not been subjected to an enormous trauma are most likely malingerers. At the other end of the spectrum are psychiatrists who diagnose minor insults to the personality as PTSD. These divergent opinions set the stage for the so-called battle of the experts and disillusionment in the minds of the public about psychiatric testimony. In his classic writings, Dr. C.B. Scrignar maintains that a mental disorder is not PTSD (for treatment or legal purposes) unless caused by a life-threatening event. He points out the important elements precipitating PTSD: environmental stimulus, realistic threat, perception by the five senses, cognitive awareness, activation of the sympathetic nervous system, vulnerability, and zone of danger. Coming together, these factors result in what Dr. Scrignar calls the "traumatic principle," which states: Any environmental stimulus which poses a realistic threat to life or limb, impacting on one, or more likely a combination of the five sensory pathways to the brain, if perceived and cognitively interpreted as dangerous (a serious threat to life or physical integrity to self or others) and followed by intense stimulation of the sympathetic nervous system, whether it produces physical injury or not, can be regarded as a traumatic event which can precipitate PTSD in a vulnerable individual who is in the zone of danger. C.B. Scrignar, Post-Traumatic Stress Disorder (New Orleans: Bruno Press, 3d ed., 1996). See also R. Slovenko, Psychiatry in Law/Law in Psychiatry (New York: Brunner-Routledge, 2002), pp. 451-471.
47. In fact, Anna Freud in 1967 expressed great concern about the confusion and abuse of the term "trauma," which, like other concepts used carelessly, would "in the course of time, lead inevitably to a blurring of meaning and finally to abandonment and loss of a valuable concept." She reflected on how she would limit her use of the term: "Like everyone else, I have tended to use the term 'trauma' rather loosely up to now, but I shall find it easier to avoid this in the future. Whenever I am tempted to call an event in a child's or adult's life 'traumatic,' I shall ask myself some further questions. Do I mean that the event was upsetting; that it was significant for altering the course of further development; that it was pathogenic? Or do I really mean traumatic in the strictest sense of the word, i.e., shattering, devastating, causing internal disruption by putting ego functioning and ego meditation out of action." A. Freud, "Comment on Trauma," in S.S. Fürst (ed.), Psychic Trauma (New York: Basic Books, 1967), pp. 235, 241; quoted in H. Krystal, Integration and Self-Healing (Hillsdale, N.J.: Analytic Press, 1988), p. 140. Depending upon their interpretation of the stressor criterion in the DSM, psychiatrists tend to underdiagnose or overdiagnose in PTSD cases. The "big boom" adherents insist that only traumas such as wars, explosions or natural disasters can precipitate PTSD and typically assert that individuals who have not been subjected to an enormous trauma are most likely malingerers. At the other end of the spectrum are psychiatrists who diagnose minor insults to the personality as PTSD. These divergent opinions set the stage for the so-called battle of the experts and disillusionment in the minds of the public about psychiatric testimony. In his classic writings, Dr. C.B. Scrignar maintains that a mental disorder is not PTSD (for treatment or legal purposes) unless caused by a life-threatening event. He points out the important elements precipitating PTSD: environmental stimulus, realistic threat, perception by the five senses, cognitive awareness, activation of the sympathetic nervous system, vulnerability, and zone of danger. Coming together, these factors result in what Dr. Scrignar calls the "traumatic principle," which states: Any environmental stimulus which poses a realistic threat to life or limb, impacting on one, or more likely a combination of the five sensory pathways to the brain, if perceived and cognitively interpreted as dangerous (a serious threat to life or physical integrity to self or others) and followed by intense stimulation of the sympathetic nervous system, whether it produces physical injury or not, can be regarded as a traumatic event which can precipitate PTSD in a vulnerable individual who is in the zone of danger. C.B. Scrignar, Post-Traumatic Stress Disorder (New Orleans: Bruno Press, 3d ed., 1996). See also R. Slovenko, Psychiatry in Law/Law in Psychiatry (New York: Brunner-Routledge, 2002), pp. 451-471.
48. See the discussion by Stephen J. Morse, "Excusing and the New Excuse Defenses: A Legal and Conceptual Review," Crime & Justice 23(1998):329.
49. A. Browne, When Battered Women Kill (New York: Free Press, 1987).
50. See, e.g., State v. Hennum, 441 N.W.2d 793 (Minn. 1989). California by 1991 legislation made admissible testimony about battered women's syndrome to show that prolonged abuse can convince a victim that violence is the only way out. California Evidence Code § 1107(1992).
51. 493 S.E.2d 770 (N.C. App. 1997).
52. See D. Apel, Memory Effects/The Holocaust and the Art of Secondary Witnessing (Piscataway, N.J.: Rutgers University Press, 2002); E. Hoffman, After Such Knowledge (New York: Public Affairs, 2004); S. Sontag, Regarding the Pain of Others (New York: Farrar, Straus & Giroux, 2003); see also T. Singer, B. Seymour, J. O'Doherty, H. Kaube, R.J. Dolan & C.D. Frith, "Empathy for Pain Involves the Affective but Not Sensory Components of Pain," Science 303 (Feb. 20, 2004):1157.
53. See D. Apel, Memory Effects/The Holocaust and the Art of Secondary Witnessing (Piscataway, N.J.: Rutgers University Press, 2002); E. Hoffman, After Such Knowledge (New York: Public Affairs, 2004); S. Sontag, Regarding the Pain of Others (New York: Farrar, Straus & Giroux, 2003); see also T. Singer, B. Seymour, J. O'Doherty, H. Kaube, R.J. Dolan & C.D. Frith, "Empathy for Pain Involves the Affective but Not Sensory Components of Pain," Science 303 (Feb. 20, 2004):1157.
54. See D. Apel, Memory Effects/The Holocaust and the Art of Secondary Witnessing (Piscataway, N.J.: Rutgers University Press, 2002); E. Hoffman, After Such Knowledge (New York: Public Affairs, 2004); S. Sontag, Regarding the Pain of Others (New York: Farrar, Straus & Giroux, 2003); see also T. Singer, B. Seymour, J. O'Doherty, H. Kaube, R.J. Dolan & C.D. Frith, "Empathy for Pain Involves the Affective but Not Sensory Components of Pain," Science 303 (Feb. 20, 2004):1157.
55. See D. Apel, Memory Effects/The Holocaust and the Art of Secondary Witnessing (Piscataway, N.J.: Rutgers University Press, 2002); E. Hoffman, After Such Knowledge (New York: Public Affairs, 2004); S. Sontag, Regarding the Pain of Others (New York: Farrar, Straus & Giroux, 2003); see also T. Singer, B. Seymour, J. O'Doherty, H. Kaube, R.J. Dolan & C.D. Frith, "Empathy for Pain Involves the Affective but Not Sensory Components of Pain," Science 303 (Feb. 20, 2004):1157.
56. Supra note 31.
57. M. Blinder, Psychiatry in the Everyday Practice of Law (Eagan, MN: West, 2003), p. 296.
58. State v. Janes, 64 Wash. App. 134, 822 P.2d 1238 (1992).
59. Menendez v. Superior Court, 3 Cal. 4th 435, 11 Cal. Rptr. 2d 92, 834 P.2d 786 (1992).
60. D. Margolick, "At the Bar," New York Times, Jan. 28, 1994, p. B-11.
61. See, for example, the discussion by Robert A. Phillips, Jr., Ph.D., in the introduction and epilogue in the book by The Troops for Truddi Chase, When Rabbit Howls (New York: E.P. Dutton, 1987). MPD specialists are taken to task in R.J. McNally, Remembering Trauma (Cambridge: Harvard University Press, 2003); R. Slovenko, "The Production of Multiple Personalities," J. Psychiatry & Law 27(1999):215. Dr. Roland Atkinson, professor of psychiatry at Oregon Health and Science University, put it thus: "In the 1980s our culture of victimization was forming. . . . PTSD joined our ever more acronymous language. Rap groups, stress claims, and sensational reports of sexual abuse multiplied. Hypnosis and provocative psychotherapies-wherein a patient's 'recovery' of traumatic memories was met with lavish praise from a therapist or group-were among the methods used to evoke recollections of remote childhood abuse. The national mood was bordering on hysteria." R. Atkinson, "Friedman's Caught, Truth Still at Large," Clinical Psychiatry News, Jan. 2004, p. 10.
62. See, for example, the discussion by Robert A. Phillips, Jr., Ph.D., in the introduction and epilogue in the book by The Troops for Truddi Chase, When Rabbit Howls (New York: E.P. Dutton, 1987). MPD specialists are taken to task in R.J. McNally, Remembering Trauma (Cambridge: Harvard University Press, 2003); R. Slovenko, "The Production of Multiple Personalities," J. Psychiatry & Law 27(1999):215. Dr. Roland Atkinson, professor of psychiatry at Oregon Health and Science University, put it thus: "In the 1980s our culture of victimization was forming. . . . PTSD joined our ever more acronymous language. Rap groups, stress claims, and sensational reports of sexual abuse multiplied. Hypnosis and provocative psychotherapies-wherein a patient's 'recovery' of traumatic memories was met with lavish praise from a therapist or group-were among the methods used to evoke recollections of remote childhood abuse. The national mood was bordering on hysteria." R. Atkinson, "Friedman's Caught, Truth Still at Large," Clinical Psychiatry News, Jan. 2004, p. 10.
63. See, for example, the discussion by Robert A. Phillips, Jr., Ph.D., in the introduction and epilogue in the book by The Troops for Truddi Chase, When Rabbit Howls (New York: E.P. Dutton, 1987). MPD specialists are taken to task in R.J. McNally, Remembering Trauma (Cambridge: Harvard University Press, 2003); R. Slovenko, "The Production of Multiple Personalities," J. Psychiatry & Law 27(1999):215. Dr. Roland Atkinson, professor of psychiatry at Oregon Health and Science University, put it thus: "In the 1980s our culture of victimization was forming. . . . PTSD joined our ever more acronymous language. Rap groups, stress claims, and sensational reports of sexual abuse multiplied. Hypnosis and provocative psychotherapies-wherein a patient's 'recovery' of traumatic memories was met with lavish praise from a therapist or group-were among the methods used to evoke recollections of remote childhood abuse. The national mood was bordering on hysteria." R. Atkinson, "Friedman's Caught, Truth Still at Large," Clinical Psychiatry News, Jan. 2004, p. 10.
64. See, for example, the discussion by Robert A. Phillips, Jr., Ph.D., in the introduction and epilogue in the book by The Troops for Truddi Chase, When Rabbit Howls (New York: E.P. Dutton, 1987). MPD specialists are taken to task in R.J. McNally, Remembering Trauma (Cambridge: Harvard University Press, 2003); R. Slovenko, "The Production of Multiple Personalities," J. Psychiatry & Law 27(1999):215. Dr. Roland Atkinson, professor of psychiatry at Oregon Health and Science University, put it thus: "In the 1980s our culture of victimization was forming. . . . PTSD joined our ever more acronymous language. Rap groups, stress claims, and sensational reports of sexual abuse multiplied. Hypnosis and provocative psychotherapies-wherein a patient's 'recovery' of traumatic memories was met with lavish praise from a therapist or group-were among the methods used to evoke recollections of remote childhood abuse. The national mood was bordering on hysteria." R. Atkinson, "Friedman's Caught, Truth Still at Large," Clinical Psychiatry News, Jan. 2004, p. 10.
65. E.G. Howe, "Psychiatric Evaluation of Offenders Who Commit Crimes While Experiencing Dissociative States," Law & Human Behav. 8(1984):253.
66. State v. Rodrigues, 679 P.2d 615 (Hawaii 1984).
67. M. Powell, "Suspect in Holdups Blames Her Alter Ego," Insight, Aug. 20, 1990, p. 59.
68. Sept. 29, 1991.
69. Gainesville Sun, March 30, 1991, p. B-14.
70. Comment by Dr. Seymour Halleck. See S.L. Halleck, "Which Patients Are Responsible for Their Illness?", Am. J. Psychotherapy 42(1988):338.
71. Johnson v. Henry Ford Hosp., Michigan Court of Appeals, unpublished opinion, No. 181296, LC No. 93-314896 (Sept. 20, 1996). The late Dr. Judiann Densen-Gerber, a psychiatrist who also had a law degree, obtained consent signatures for all known personalities. She had a patient with over 100 personalities. Personal communication.
72. Dorsey v. State, 206 Ga. App. 709, 425 S.E.2d 224 (1992); see K. Lavey, "1 yes, 2 no's in 'multi-personality' rape case," USA Today, Aug. 18, 1990, p. 3.
73. Dorsey v. State, 206 Ga. App. 709, 425 S.E.2d 224 (1992); see K. Lavey, "1 yes, 2 no's in 'multi-personality' rape case," USA Today, Aug. 18, 1990, p. 3.
74. In the trial of John Foley, accused of smothering a fellow patient at a Michigan mental hospital, defense counsel sought to have Foley's multiple personalities brought out to show them to the jury. Just as Foley was about to dissociate, the trial judge interrupted, saying, "The only testimony we take here is under oath-and each personality has to take the oath." D. Kocieniewski, "Jurors See Taped Alter Ego of Convicted Killer," Detroit News, March 16, 1990, p. B-3.
75. State v. Badger, 229 N.J. Super. 288, 551 A.2d 207 (1988); see A.P. French & B.R. Shechmeister, "The Multiple Personality Syndrome and Criminal Defense," Bull. Am. Acad. Psychiatry & Law 11(1983):17.
76. State v. Badger, 229 N.J. Super. 288, 551 A.2d 207 (1988); see A.P. French & B.R. Shechmeister, "The Multiple Personality Syndrome and Criminal Defense," Bull. Am. Acad. Psychiatry & Law 11(1983):17.
77. E.R. Saks, "Multiple Personality Disorder and Criminal Responsibility," U. Cal. Davis L. Rev. 25(1992):383, 410.
78. Personal communication (Feb. 26, 2004).