Mental illness def initions and threshold
All state statues require a threshold mental illness for a successful insanity defense. In fact, the term “mental disease or defect” is commonly used in state insanity statutes as the requisite threshold mental illness. However, what is that threshold and who should define it—mental health profession- als, legislators, or courts? These are challenging questions that illustrate the inherent tension between legal concepts and medical knowledge. Some have argued that medicine or science should guide any definitions of mental ill- ness. Forensic psychiatrist Bernard Diamond [23] artfully articulated his position about this tension:
I believe it is wrong to concede any threshold definition of mental illness other than that determined by scientific and clinical knowledge. . . . [I] t is not up to the law to establish the threshold for the existence of mental illness in a crimi- nal defendant. But it is up to the law to determine the particular forms and degree of psychopathology it will recognize as exculpatory [23 (p26)].
However, courts have closely guarded their role in determining what sat- isfies legal concepts. Illustrative of this is the D.C. Court of Appeal’s opinion in McDonald v. U.S. (1962) [24]:
Our purpose now is to make it very clear that neither the court nor the jury is bound by the ad hoc definition or conclusions as to what experts state is a disease or defect. What psychiatrists may consider a ’mental disease or defect’ for clinical purposes . . . may or may not be the same as mental disease or defect for the jury’s purpose in defining criminal responsibility.
With this as background, terms such as “mental disease or defect” that are used in insanity statutes are legal terms of art, meaning that they reflect spe- cific legal, not clinical, definitions. In contrast, DSM-5 contains diagnostic
clinical criteria for “mental disorders.” Accordingly, a “mental disease or defect” is not necessarily synonymous with a DSM-5 diagnosis. For example, the mental disorder pedophilic disorder is defined by DSM-5 criteria, but it is not recognized by statutory or case law as a “mental disease or defect” required for an insanity defense. Although some jurisdictions do define mental disease in terms of the DSM, this is not the norm [25]. Likewise, the definition of the mental disorder may differ from the same mental disorder’s definition in the state’s other laws relevant to mental health, such as civil commitment statutes.
Consistent with prior versions of the DSM, this principle is further reflected by the cautionary statement in DSM-5 [26] that the presence of a DSM-5 diagnosis does not in itself imply that the legal definition for a men- tal disorder nor criminal responsibility has been met. This statement also emphasizes that having a DSM-5 disorder does not suggest any particu- lar underlying cause for the disorder nor does it suggest any relationship between a mental disorder and the individual’s ability to control his or her own behavior[26 (p25)].
DSM-5’s cautionary statement’s specific reference to a diminished behav- ioral control is directly relevant to the insanity standards that have a voli- tional component or “irresistible impulse”-type of test. In those jurisdictions that have a volitional standard, the DSM-5 diagnostic category of Disruptive, Impulse-Control, and Conduct Disorders will likely be more relevant than in jurisdictions with strictly cognitive tests.
The definitions and severity of mental disease or defect vary by jurisdic- tion. Many jurisdictions attempt to narrow the threshold of mental illness. After the Hinckley case, a number of organizations supported a more lim- ited definition for the purpose of insanity. The American Bar Association favored a cognitive definition of mental disease attributable to functional or organic impairment in contrast to deficits in character or passion, caution- ing that the insanity defense should not apply to a normal defendant who becomes abnormally impassioned [27]. Likewise, the American Psychiatric Association advocated for a “serious” mental disease requirement for the insanity standard [27].
The FIDRA adopted language speaking to the severity of mental illness. To reiterate, the FIDRA requires the presence of a “severe” mental disease or defect to establish insanity. The legislative history of the FIDRA reflects that Congress added “severe” to exclude “non-psychotic behavioral disorders, such as an ’inadequate personality,’ ’immature personality,’ or a pattern of ’anti- social tendencies” (US v Long (5th Cir. 2009) [28]. A number of states have adopted this “severe” disease language [12]. Psychotic disorders, major depres- sive disorder, and bipolar disorder generally qualify as severe mental disease; other DSM diagnoses and other syndromes are not universally accepted.
Limiting illness eligible for NGRI consideration
Many jurisdictions identify specific exclusions to their statutory definitions of mental disease or defect. Consistent with the ALI/MPC insanity test, the most common of these relates to antisocial acts or Antisocial Personality Disorder. Few statutes name the disorder explicitly. The DSM-5 has retained the diagnosis of antisocial personality disorder. DSM-5 has also retained from DSM-IV language that emphasizes that even if an individual has a problem following societal rules, this aberrant behavior alone does not mean they have an actual mental disorder [26 (p20)].
Even where antisocial acts or Antisocial Personality Disorder is excluded from the jurisdiction’s definition of mental disorder or insanity, an evaluator should assess for the presence of other mental disorders, which may have alternatively driven the behavior in question.
Some jurisdictions explicitly exclude other personality disorders as con- stituting a mental disease/defect for the purposes of an insanity defense (in addition to antisocial acts or Antisocial Personality Disorder). For example, Oregon excludes illness “constituting solely a personality disorder” [29]. The per se exclusion of personality disorders is not universally accepted.
Voluntary intoxication and certain substance use disorders are another category that some jurisdictions have legislatively excluded as a mental disor- der from their insanity statutes. All states prohibit voluntary intoxication as a sole basis for insanity, and some states codify this in their statutory scheme. In contrast, involuntary intoxication (typically by coercion or mistake) is widely accepted in some version as a defense to criminal culpability. Finally, when chronic alcohol or substance use leads to a persistent mental condition, courts refer to this as “settled insanity” and may be the basis for NGRI. Challenges presented by DSM-5
Given jurisdictional variation in defining mental disease or defect, and that these are legal terms not generally synonymous with DSM diagnoses, DSM-5 is not expected to radically modify the forensic evaluator’s role in assessing criminal responsibility. One criticism of DSM-5 has been concern that cer- tain diagnoses “medicalize” normal variations of human behavior. With this criticism flows the related concept that more persons are likely to meet cri- teria for such disorders and, because these disorders are recognized as legiti- mate psychopathology in DSM-5, more persons will attempt to use them to exculpate responsibility via a mental health defense, or in other medicolegal issues. Although this may be true for some forensic assessments, such as dis- ability claims, it is less likely to be a major factor for criminal responsibil- ity because the insanity tests require specific inabilities (e.g., inability to tell
right from wrong) resulting from the mental disorder. A sampling of DSM-5 changes is discussed here in the context of criminal responsibility.
Intellectual disability
In DSM-5, intellectual disability replaces the term Mental Retardation. DSM-5 retains the specification for intelligence testing. However, intellectual disability disorder classifies severity as mild, moderate, severe, or profound and emphasizes adaptive functioning abilities (conceptual, social, and practi- cal) in addition to IQ scores [26]. With the removal the multiaxial system in DSM-5, intellectual disability is no longer an Axis II disorder. These changes associated with the adaptive functioning criteria impact criminal responsibil- ity and mens rea evaluations because they require mental health evaluators to more thoroughly assess these domains through their interview and use of collateral information. Take, for example, the case of a 17-year-old male, for- merly diagnosed with Mental Retardation, who is charged with sexual assault against a 15-year-old girl at his group home. The boy’s lawyer asserts that the boy did not have the ability to understand the age difference or lack of con- sent. Under DSM-5, the severity of intellectual disability is not be determined by IQ testing, but rather requires an assessment of adaptive abilities.
Schizophrenia spectrum and other psychotic disorders
With DSM-5, modest changes have been made to the diagnostic criteria for the various psychotic disorders. The main change is the emphasis on symp- tom severity that requires a “quantitative assessment” of psychotic symp- toms [26 (p100)]. For each psychotic disorder, an evaluator may specify the diagnosis with a severity rating. Although DSM-5 does not require the use of any specific symptom severity scale to make a diagnosis, it includes the Clinician-Rated Dimensions of Psychosis Symptom Severity Scale, found in the Emerging Measures and Models section of the text. Mental health evalu- ators should familiarize themselves with the severity ratings because they may be tasked with specifically commenting on symptom severity retrospec- tively at the time of the criminal event. (See Chapter 3 for detailed informa- tion about this scale.)
Bipolar and related disorders
The main diagnostic change in DSM-5 to the Bipolar and Related Disorders is the addition of “persistently increased goal-directed activity or energy”
for both mania and hypomania [26 (p124)]. This descriptor was added to make explicit that these are hallmark symptoms of the diagnosis. The change has forensic implications because the mental health evaluator will need to assess the duration of these particular symptoms to make the diagnosis.
Disruptive mood dysregulation disorder
DSM-5 added the diagnosis of disruptive mood dysregulation disorder to fill a gap for children with persistent mood dysregulation different than those with bipolar disorder. This diagnosis is likely to be applicable to juveniles using criminal responsibility defenses or mitigation. Mental health evalua- tors should be aware that the diagnosis requires repeated and extreme prob- lems with anger management that are in marked excess to the underlying trigger for the behavior [26 (p156)]. Because nearly all juveniles have temper outbursts, the evaluator needs to distinguish between symptoms of the dis- order and ordinary or volitional outbursts. The diagnosis cannot be made for the first time in persons age 19 or older. DSM-5 lacks guidance as to whether the diagnosis may be used by someone age 19 or older if he or she met criteria for the diagnosis before the age of 19.
Premenstrual dysphoric disorder
This diagnosis has moved from a category for further study in DSM-IV to the DSM-5 category of Depressive Disorders. The use of Premenstrual Dysphoric Disorder (PMDD) or premenstrual syndrome to excuse culpabil- ity has long been discussed in medical and legal articles [30]. The diagnosis requires symptom confirmation by daily symptom ratings for a minimum of two symptomatic menstrual periods [26 (p171)]. Accordingly, collateral information, such as gynecologic or other medical records, may be particu- larly useful in making the diagnosis. This diagnosis has been used success- fully to excuse or mitigate responsibility in a limited number of cases in the United States [31]. Moving the disorder into the main text of DSM-5 legitimizes it as a disease of the mind rather than a hormonal or physio- logic ailment. Accordingly, there may be increased interest by defendants and lawyers to assert the condition in an insanity defense. In jurisdictions following the M’Naghten standard, in particular, it will be difficult for the defendant to establish, because of PMDD, that she lacked knowledge of the wrongfulness of the act. The requirement remains that there is a nexus between the disorder, the criminal behavior, and not knowing the wrong- fulness of the criminal behavior.
Hoarding disorder
Hoarding, often considered a subtype of Obsessive Compulsive Disorder (OCD), is a unique diagnosis in DSM-5. Classifying hoarding as a distinct disorder in DSM-5 has legal implications because some states have crimes related to hoarding, namely animal hoarding. Accordingly, defendants charged with crimes like animal hoarding are likely to plead NGRI or use other mens rea defenses on the basis of a hoarding diagnosis. The diagnosis requires sustained problems with giving up or separating from items that one has collected [26 (p247)]. Insight specifiers similar to OCD are available for the evaluator. One specifier is “with absent insight/delusional beliefs” [26 (p247)]. The mental health evaluator should use caution is assessing insight; lack of insight does not necessarily equate with lack of mens rea. Individuals with hoarding, for example, may have insight into their possessive behaviors but have difficulty in parting with possessions because of unreasonable ideas about the value of the possessions. The diagnosis requires that the symptoms are not better explained by another disorder. For persons with severe hoard- ing that appear to take on delusional proportions, another diagnosis (e.g., psychotic disorder) may need to be considered.
Posttraumatic stress disorder
Posttraumatic Stress Disorder (PTSD) has, although rarely, been used as the basis for the insanity defense. In DSM-5, PTSD has been reclassified from the Anxiety Disorders chapter in DSM-IV to the category of Trauma and Stressor-Related Disorders. The diagnostic criteria have changed. Most nota- bly, the A criterion is more explicit in what qualifies as a traumatic event. With DSM-5, directly and witnessed traumatic experiences qualify as trau- matic events, as does learning that a friend or family member experienced a nonaccidental trauma or being exposed during the course of one’s job to emo- tionally distressing details about traumatic incidents to others [26 (p271)]. The subjective reaction criterion (A2) from DSM-IV has been eliminated. Concern has been raised that these more “liberal” A-criteria widens the door for more individuals to claim PTSD [32]. In DSM-5, dissociative reactions (flashbacks) are described on a continuum (criterion-B), hence defendants with only minimal dissociative reactions may satisfy this criterion for the diagnosis. Regardless, PTSD as a basis for NGRI has been viewed skepti- cally, and will continue to so, because of the subjective nature of the disor- der, heavy reliance on evaluee self-report, and belief that it is relatively easy to imitate [33]. Military-related PTSD is highly comorbid with substance use disorders, adding to skepticism because of the difficulty in defining the degree of impairment from PTSD.
With DSM-5 diagnostic criteria for PTSD, defendants will continue to find difficulty in demonstrating lack of knowledge of wrongfulness as required under a M’Naghten-type standard. For example, the presence or absence of intense fear or horror (former A2 from DSM-IV) at the time of the traumatic event is unlikely to inform decisions of later wrongfulness. However, an argu- ment for impaired cognition and awareness could be made if the defendant can establish that the crime occurred during a dissociative reaction (an ele- ment of criterion B). A nexus between PTSD and the crime may be easier to establish in an ALI/MPC jurisdiction where a dissociative reaction or, possi- bly, increased arousal (criterion E) would be relevant to the volitional arm of the insanity test.
Dissociative identity disorder
Defendants have raised this disorder in defense of a variety of criminal charges. However, relying on this disorder is often difficult because the defendant, essentially, asserts that more than one personality (or alter) exists in the single human body and that one personality committed a crimi- nal act while the dominant personality was not aware. Courts vary in their approach to criminal responsibility of persons with this diagnosis and there is no consensus among states. A couple of changes to dissociative identity disorder (DID) in DSM-5 have medicolegal implications. First, this disorder now requires two or more fully distinct personalities, which may include an “experience of possession” (Criterion A) [26 (p292)]. The concept of “posses- sion” is described as a state that most commonly presents as if a spirit or supernatural force has taken over the individual and as a result the individ- ual talks or behaves in an obviously different manner than usual [26 (p293)]. It is not difficult to imagine defendants claiming that they were “possessed” in effort to avoid criminal responsibility. Mental health evaluators should assess whether a possession state may more aptly reflects a cultural or spiri- tual practice than a mental disorder.
Second, in DSM-5 memory lapses (Criterion B) may only affect recall of daily incidents in contrast to DSM-IV that required lapses involving a loss of memory for significant personal data. It is foreseeable that more people will qualify for DID with this change. Although more people may qualify for DID, the diagnosis has been—and will likely continue to be—controver- sial and viewed with suspicion due to concerns about malingering, difficulty obtaining information about the personality who allegedly committed the crime, and various theories about whether personalities should be consid- ered distinct from persons in law.
Dissociative amnesia
Persons with dissociative amnesia lack the ability to recall personal informa- tion. In contrast to the DSM-IV, the new criterion explicitly identifies two types: localized or selective versus generalized. Given this, it is a disorder ripe for defendants to claim, for example, selective amnesia for the criminal event. Also new to DSM-5, the specifier “with dissociative fugue” is listed here rather than as a separate diagnosis [26 (p298)].
Nonrapid eye movement sleep arousal disorders
Sleep-related sexual behavior (sexsomnia or sleep sex) is a specialized form of sleepwalking, which is one of the nonrapid eye movement sleep arousal disorders. Sexsomnia is characterized by sexual behavior committed while in a sleeping state without conscious awareness of the behavior [26 (p401)]. Sexsomnia has been successfully raised as a defense to sexual assault charges, most notably in Canada [34]. In 2005, a defendant was acquitted of sexual assault charges based on expert testimony that the defendant was in the midst of a sexsomnia dissociative state when he engaged in unwanted sexual activity with a victim. The acquittal was upheld on appeal. Although only infrequently raised as a criminal defense, sexsomnia presents an inter- esting dilemma for forensic mental health and courts alike. Guidelines have been proposed to assist in the evaluation of this defense [35].
Disruptive, impulse-control, and conduct disorders
The disorders in this DSM-5 category are united by impairment in self-regulation. Retained in DSM-5 is the diagnosis of intermittent explosive disorder. Persons with this disorder have repeated problems with controlling their aggression (Criterion A) [26 (p466)]. In contrast to DSM-IV, which used referenced an inability to resist one’s behavior, DSM-5 uses “failure to con- trol” impulses, which can be manifested by verbal aggression or behavioral outbursts [26 (p466)].
The changes to Intermittent Explosive Disorder are expected to have little impact on insanity and mens rea evaluations. Because the diagno- sis focuses on behavior, it will remain difficult for defendants to meet the standard for insanity in jurisdictions where a cognitive test (M’Naghten) is used. The diagnosis is more applicable in states using volitional insan- ity tests. For defendants with the diagnosis, it is important to recognize
that any given act could be impulsive or defensive or premeditated. In a volitional NGRI assessment, the forensic evaluator is tasked with assess- ing whether the defendant had an irresistible impulse versus an impulse not resisted.
Substance-related and addictive disorders
An important change in DSM-5 is that the manual no longer distinguishes