Behavioral science is on the march. Psychiatrists and psychologists are identifying an ever-proliferating and often bewildering array of new syndromes or disorders. Some have received the clinical and scientific imprimatur of actual inclusion in the American Psychiatric Association's official diagnostic manual, referred to as DSM-IV.(2) Examples of the diagnostically respectable disorders include: "Antisocial Personality Disorder,"(3) "Posttraumatic Stress Disorder,"(4) "Intermittent Explosive Disorder,"(5) "Kleptomania," and "Pathological Gambling."(6) DSM-IV characterizes other categories as "in need of further study" because their existence as discrete psychopathological entities is not yet sufficiently validated to warrant inclusion in the manual.(7) Examples include, "Postconcussional Disorder,"(8) "Caffeine Withdrawal,"(9) and "Premenstrual Dysphoric Disorder"(10) (which was formerly termed Premenstrual Syndrome or PMS and, later, Late Luteal Phase Dysphoric Disorder). Finally, and least respectably, some alleged syndromes have not received general provisional recognition as valid, but are advocated with varying degrees of success by clinicians and researchers who have supposedly identified them. Examples from the last group, which have been chosen from the mental health and legal literatures and from legal cases, where they often arise, include," Battered Woman Syndrome,"(11) "Vietnam Syndrome,"(12) "Child Sexual Abuse Syndrome,"(13) "Holocaust Survivor Syndrome,"(14) "Urban Survival Syndrome,"(15) "Rotten Social Background,"(16) and "Adopted Child Syndrome."(17)
Diagnostic identification, research, and advocacy are unproblematic if they are confined within the mental health professionals' domain. Although the concepts of mental and behavioral abnormality are hotly contested, human suffering is potentially involved, and we will all probably benefit from activities aimed at acquiring valid knowledge of how our mental and behavioral nature is carved at the joints. But swept away by the torrent of science and, alas, pseudo-science concerning alleged new syndromes, many people now suffer from yet another new syndrome that I have identified, or at least given a name: the "New Syndrome Excuse Syndrome." The primary diagnostic criterion for this syndrome is an almost irresistible impulse to use the alleged discovery of syndromes of mental abnormality as good reason to alter the criminal law. Those suffering from the new syndrome include many members of the criminal defense bar, properly seeking any possible purchase to exonerate defendants, legal commentators, some mental health professionals, and some judges and legislatures.
Courts and, less often, legislatures are increasingly inundated with claims that syndromes old and new, validated and unvalidated, should be the basis for two types of legal change. The first is the creation of new affirmative defenses. Examples are claims for the creation of a discrete "battered victim" or "urban survivor syndrome" defense. The second change proposal is the expansion of old defenses: for example, loosening objective standards for justifications such as self-defense.
All too often, I fear, the new syndromes are not sufficiently validated and are the product of unacceptably "soft" science or clinical crockery. Nevertheless, this paper will not discuss the pseudo-science problem. Instead, it will accept the validity of some of the new syndromes or some yet to be discovered syndromes because the legal issues are theoretically and practically important only if claimed new syndromes do have reasonable validity. Consequently, this article win assume away the scientific and clinical problems and will focus on the conceptual difficulties and policy dilemmas the New Syndrome Excuse Syndrome presents.
This article attempts to clear the theoretical terrain to determine how the criminal law should understand and respond to claims that new syndrome evidence warrants the expansion of existing defenses or the creation of new ones. …