Reviving the "Vietnam Defense": Post-Traumatic Stress Disorder and Criminal Responsibility in a Post-Iraq/Afghanistan World

Article excerpt

I. Introduction

The Vietnam War was a conflict in many ways unlike anything American soldiers had ever seen before. It was an unfamiliar kind of war, fought in unfamiliar terrain, for an objective that was all too often unclear to those asked to fight it. Young men were flown into battle and asked to fight alongside fellow soldiers and under commanding officers whom they had never before met. (1) They were often exposed to extraordinary brutality, committed both by the enemy and sometimes even by their own comrades. And when they returned home, these soldiers were faced with a disinterested, if not hostile, public. (2)

These factors combined to result in a staggering amount of psychological trauma among the soldiers returning home from Vietnam. As will be discussed, many of the survivors of this war began to psychologically reexperience the worst parts of their military service. Relatedly, they often became isolated, irritable, and unable to integrate back into society. Many returning soldiers even committed suicide, (3) while many others committed criminal acts. (4) The latter group, some of them suffering from what was then called "Vietnam Syndrome," often attempted to use the impact of the Vietnam War on them to explain, justify, or mitigate their criminal acts, with differing levels of success. (5)

However, it was not until 1980 that the American Psychiatric Association officially recognized Vietnam Syndrome--or as it came to be known, post-traumatic stress disorder ("PTSD")--as a psychological illness. (6) It has been estimated that up to seventy percent of the soldiers who survived Vietnam suffered some form of PTSD as a result of the war. (7)

Several decades of relative peace pushed the subject of combat-related PTSD as a criminal defense to the background of the criminal law. However, as soldiers serving overseas in Iraq and Afghanistan continue to return home, they are likely to confront some of the same issues and problems as their predecessors in Vietnam did upon their return. By 2009, over one-third of war veterans from Iraq and Afghanistan enrolling in the veterans' health system after 2001 received a diagnosis revealing at least one mental health issue. (8) Like the soldiers in Vietnam, the military personnel in Iraq and Afghanistan are fighting a difficult war that has posed severe challenges and exposed them to traumatic events for which they were often ill-prepared. (9)

Additionally, the current prolonged nature of the conflicts, resulting in multiple and lengthy deployments, continues to burden the psyche of these soldiers. (10) And like their predecessors in Vietnam, today's military personnel will return home to a public deeply divided on the moral justification and effectiveness of their mission. (11)

This Article will examine the current interplay between PTSD and the criminal law. In Part II, the historical development of PTSD as a psychiatric diagnosis will be explored, as well as the nature of the disorder as it is currently defined. In Part III, the possible ways in which PTSD could lead a veteran to commit criminal acts will be discussed. Finally, in Part IV, defenses potentially available to these veterans, the difficulties faced by someone with PTSD pursuing these defenses, and strategies that may enhance the likelihood of a successful defense will be outlined.

II. PTSD Described

A. Historical Background

Though Vietnam brought the issue of combat-related stress disorders into the national consciousness, the apparent revelation that soldiers often experience severe psychological reactions to combat is not a new one. (12) As early as the Civil War, it was acknowledged that intense combat could lead to psychiatric symptoms. (13) At the time, soldiers exhibiting symptoms of PTSD after battle were diagnosed with "nostalgia," or "soldier's heart." (14) This diagnosis encompassed symptoms of hyperalertness, dizziness, and chest pain, which were thought at the time to be caused by a heart condition. …