EMERGING DEFENSES TO CRIME
"Whoever wants to be a judge of human nature should study people's excuses" (German Poet Hebbel)
Other than having an alibi (which is not technically a defense but a denial), there are two main types of defenses: (1) Justifications and (2) Excuses. These terms are not easily defined, and the distinction is less than perfect. Justifications refer to situations in which the defendant doesn't deny they did it but that they did it for all the right reasons, an appeal to higher loyalty or ideals (as in self-defense) or more important reasons (as in necessity), for instance. Excuses refer to situations in which the defendant also doesn't deny they did it but that they are not responsible for it (as in insanity or diminished capacity defenses), typically on grounds of lacking volition over their free will. Sometimes, it's said that Justifications involve denying mens rea and Excuses involve denying actus reus, but the mind-body connection is complicated in this regard. Take sleepwalking, for instance, which might be treated as the inability to form mental intent although it's the body (which is asleep). The law also tends to think of "mental" disorder as brain disorder, to avoid metaphysical debates over whether or not it's possible for something invisible like a "mind" to get sick.
Although in this lecture, we will simply divide the defenses into Justifications and Excuses, conceptually, one can formulate at least five different classes of defenses:
defenses that involve protecting competing interests; self-defense, defense of others, etc. where society excuses what would otherwise be a crime
defenses involving avoidance of a greater evil; necessity or duress, e.g., where society views the source of the predicament as coming from outside the defendant
defenses that attempt to disprove or negate mens rea; infancy, intoxication, mistake, and consent, e.g.
defenses involving ignorance, where society recognizes that there might be sincere, genuine, and legitimate cases of not knowing the law or (naively) believing in something that negates an element of the crime.
defenses related to insanity, which may or may not be related to the variety of diminished capacity, stress-related, and domestic-related defenses.
The following have at one time or another been introduced in a court of law as Justifications (complete legal & moral exoneration), Excuses (legal but not moral exculpation), or Mitigations (reduces degree of legal & moral responsibility). Others are simply "syndromes" which have various degrees of legitimacy. Barron's Medical Dictionary defines "syndrome" as a complex of signs and symptoms presenting a clinical picture of a disease or disorder.
Adopted Child Syndrome, claims a "sleeper effect" in knowledge of being adopted leading to crime.
Accommodation Syndrome (State v. J.Q. 1991 N.J.) an abused child lives with a secret of abuse, causing later conditions of helplessness and even lying; used to explain lying in court; doesn't meet Frye test.
American Dream Syndrome, claims cultural influence, of wanting to get ahead economically causes crime.
Antisocial Personality Disorder, Does not normally satisfy requirements to be declared incompetent or insane, but is often admitted in court to explain chronic fits of anger and violence if subject takes pleasure in violating society's rules (as with sociopathy or psychopathy). Used as part of a defense or mitigating factor by defense attorneys, but more commonly seen as an aggravating factor by prosecutors, judges, and juries.
Arbitrary Abuse of Power Syndrome, claims behavior due to dealing with bureaucrats all day.
Attention Deficit Disorder aka Hyperactivity, used as both defense and mitigating factor. Used in Michael Fay case (caning in Singapore) to plead for mercy, but Singapore didn't buy it.
Battered Child Syndrome, used as excuse for stepkids who kill their stepparent(s)
Battered Woman Syndrome, used as excuse for spouses who kill their mate, a case in Hickory, NC in 1994 involved a city fireman who reversed this to explain killing his wife for fear of his safety.
Black Rage Syndrome, created by NY attorney William Kunstler after reading Black Rage by Grier & Cobbs. Anger over racial injustice serves as catalyst or trigger for pre-existing mental problem. Used unsuccessfully in the Colin Ferguson case who killed six passengers on a Long Island train.
Cherambault-Kandinsky Syndrome, or CKS, an erotomanic disorder invented by John Hopkins sexologists to explain desparate acts, such as child abduction and extortion, common to lovesick parents or ex-spouses, person presumably falls under a "spell" much like epilepsy. Admitted in a NY court in 1992.
Chronic Fatigue Syndrome, or Yuppie Disease, affects about 100,000 Americans, impairs daily activities, body aches, and photophobia, a medically recognized condition.
Chronic Lateness Syndrome, used in 1992 to explain a fired Chicago school teacher's tendency to arrive late. Admitted as attempt at justification.
Computer Addiction, a claim that point-and-shoot computer games cause violence.
Cultural Norms Defense, where behaviors typical in one's homeland are illegal here, e.g., Japanese suicide requires killing children first; in this case, jury reduced sentence to manslaughter; typically used when diversity, multiculturalism, or discrimination are related issues.
Distant Father Syndrome, invented by Robert Bly in book Iron John (1993), explains crime as vindictiveness toward an absent father who never payed child support and never showed son his workplace.
Drug Abuse Defense, (People v. Richard 1989, CA) often the claim of child molesters that they are not responsible because they were high on drugs at the time, generally unsuccessful.
Elderly Abuse Syndrome, a victimization condition in which elderly don't want to report a family member.
Everybody Does It Syndrome, often the claim of politicians caught in malfeasance of office that every other governor, sheriff, etc. uses public funds or inmates for personal chores.
Failure-to-File Syndrome, a NY University professor, Steve Coleman, used this in 1994 to explain an overall inability to act in one's best interests, all the while being highly anxious about it. It has been successful in a number of cases, but has yet to be applied to criminal tax cases.
Fan Obsession Syndrome, first invoked by psychiatrist Park Elliot Dietz in 1992 to defend Robert Bardo who killed actress Rebecca Schaeffer. Jury didn't buy it.
Fetal Alcohol Syndrome, if mother consumed alcohol during pregnancy, produces "sadistic side" of personality later in life, similar to Fetal Trimethadione (Epilepsy medicine) syndrome. Admissible in U.S. and taken quite seriously in Canada.
Football Widow Syndrome, First raised in 1994 in Florida to explain wife who got tired of husband watching football all the time, admitted as excuse.
Gangster Syndrome, a claim of cultural influence, growing up in gang-infested ghetto, causes crime.
Genetics Defense, most courts have been unwilling to allow cytogenetic evidence, such as XYY phenomenon, but is usually entered as excuse and not complete justification
Gone with the Wind Syndrome, named after the movie & used by rape experts to explain why rapists believe sex has to be spontaneous and done after some resistance on the part of the woman.
Gulf War Syndrome, rashes, sores, muscle aches, fatigue presumable due to chemical agents exposure.
Holocaust Survivor Syndrome, first identified in 1952 to explain distrust of governments and other acts of resistance or inabilities to remember.
Legal Abuse Syndrome, a term coined by Karin Huffer, author of Overcoming the Devastation of Legal Abuse Syndrome, which is not intended to excuse illegal behavior, but to prevent PTSD-type violence against court personnel. Relates to experience with overzealous, punitive, and ethically questionable behavior of court personnel, as in Dennis Fung's case, the criminalist who testified in the OJ Simpson trial. The defense, after a gruelling day of testimony, passed out fortune cookies to the press, calling it "Hung Fung Day".
Meek-Mate Syndrome, first invoked by a CA man in 1994 who killed his wife because she psychologically emasculated him by calling him names, ridiculing him in public, and forcing him to sleep on the floor.
The Minister Made Me Do It Defense, first used by Michael Griffin in 1994 to defend his killing of an abortion doctor, Dr. David Gunn. Admitted and strongly argued, but jury didn't buy it.
Mob Mentality Defense, invented by Irish Doctor, Philip McGarry in 1994 to explain a crowd bashing on a perceived common enemy. Used in U.S. to excuse cross-burnings and acts of racial hatred.
Mother Lion Defense, seeks to justify mother 's violent reactions taken to protect her children. Often admitted and successful.
Multiple Personality Disorder, this condition is often seen as resulting from childhood abuse, and when successful, it is an insanity defense. A couple of times, however, defendents have been caught lying.
Munchausen-By-Proxy Syndrome. This condition causes parents to falsify or cause their children's abuse because of a pathological need for attention by authorities, a desire to strike back at the system for some perceived wrong, or to bask in the glory of nurturing professionals.
Nice-Lady Syndrome, used to explain why unhappy people stay with abusive or unsatisfactory mates, because they care about other's feelings more than their own, co-dependency, Al-Anon.
Nicotine Withdrawal Syndrome, a recognized DSMIII disorder involving cravings, irritabilitly, frustration, and anger. It has yet to be offered in an American courtroom
NIMBY (Not in My Backyard) Syndrome. Explains illegal actions taken by homeowners to protect their property values.
Parental Abuse Syndrome, the Menendez defense, successfully used to claim that years of emotional, physical or sexual abuse by a parent on a child causes loss of control over later behavior.
Parental Alienation Syndrome, coined by psychologist Richard Gardner in 1992 to explain children of divorced parents when one parent plays one against the other, successful example of hate training.
Patient-Therapist Sex Syndrome, a claim that behavior is due to sexual abuse at the hands of a trusted confidant, such as a psychotherapist, or priest.
Pornography Syndrome, often entered as a mitigating factor to hold men less responsible, but practice was shut down in Schiro v. Clark in 1992. Presumably acting under influence of pornography at the time.
Posttraumatic Stress Disorder, a recognized DSMIII disorder, triggered by a distressing event, where person becomes numb, offered as justification, excuse, and mitigation. Most successful at mitigating , getting charges reduced.
Premenstrual Stress Syndrome, hormonal changes are so severe that a woman is driven to the unthinkable. Used successfully to acquit Virginia surgeon Geraldine Richter in 1991 for DUI & Zsa Zsa-type behavior.
Prozac Defense, a small percentage of Prozac takers have violent reactions, often a successful summary judgment of innocent in CA.
Rape Trauma Syndrome (RTS), discovered in 1974 and widely used to counter defense claims that the victim offered her consent in some way. One of the reasons consent laws were changed.
Repressed or Recovered Memory Syndrome, certain traumatic memories are triggered years later, such as sexual abuse by a therapist or priest. Juries have accepted these and awarded large sums of money.
Ritual Abuse (Satanic Cult) Syndrome, aka Patty Hearst defense, successful in most cases where physical or psychological brainwashing took place.
Rock and Roll Defense, alleges that subliminal messages in rock , or in some cases rap, music, were the cause of conduct. Used in Manson defense (Beatles), Judas Priest (1990), and Tupac Shukir music.
Roid Rage (violence caused by steroids), coined by Dr. David Datz, Harvard Medical School, anabolic steroids typically cause aggression. Used successfullly in 1993 in CA to explain bodybuilder's uncontrollable rage in strangling his girlfriend to death.
Self-Victimization Syndrome, a sociological phenomenon that explains constant anger and unhappiness with one's place in society, also known as cycle of poverty defense. A few cases won with it in D.C. and CA.
Sexual Abuse Syndrome, claims that early sex abuse caused later behavior.
Sexually Transmitted Disease Syndrome, claims that having a disease or fear of catching it causes behavior.
Sitting Duck Syndrome, a victimization condition in which a person abused early in life, or has a history of abusive relationships is more likely to passively accept new abusive or exploitative relationships. Often quoted statistic is 75% of women who leave are at risk of being killed by their abuser.
Situational Stress Syndrome, the idea that trivial things, like acne pimple outbreaks, cause crime.
Stockholm Syndrome, first identified in Sweden, where hostages come over to hostage-taker's side.
Super Bowl Sunday Syndrome, often quoted statistic is 40% rise in domestic violence on this day. Hasn't been proven reliable in court.
SuperJock Syndrome, part of the O.J. Simpson defense. Coined by Dr. Susan Forward, the therapist who treated Nicole Simpson. Athletes, especially superstars, are presumably prone to violence when frustrated. No respected psychology organization recognized this syndrome.
Sybil Syndrome, aka multiple personality syndrome.
Television Defense, contends that repeated exposure to violence on TV leads to violent action. First mentioned in 1977 at trial of Ronney Zamora, a fifteen year old who killed an eighty-two old neighbor. In this case the jury didn't buy it.
Tobacco Deprivation Syndrome, same as nicotine withdrawal syndrome.
Twinkie Defense, in 1978, Dan White was found guilty of involuntary manslaughter instead of first degree murder for the killing of San Fransisco Mayor, George Moscone and Supervisor Harvey Milk. At the time immediately before the killings, Dan White only consumed junk food.
UFO Survivor Syndrome, made famous with John Mack's book, Human Encounters With Aliens. Symptoms include dreams of UFOs, inexplainable nosebleeds, and other strange bodily sensations. Mack himself admits he cannot recommend a disease syndrome, but implies that alien abductions are to blame for many people's behaviors.
Unhappy Gay Sailor Syndrome, a condition describing the frustration and anger of gay & lesbian soldiers forced to serve out their tour of duty in the closet, first used to justify the charge of sabotage when a gun turret exploded on the USS Iowa.
Urban Survival Syndrome, first used as legal defense in Texas murder trial of Daimian Osby claiming that conditions in Osby's neighborhood were so violent that they justified Osby's shooting of two men. The jury split 11-1 on the verdict in 1994.
Vietnam Syndrome, a variation of PTSS,
several defendents have gotten insanity verdicts for killing their relatives
after returning home from 'Nam because they are still practicing survival
Does the Abuse Excuse Threaten our Legal System?
Lecture on Defenses to Crime under Criminal Law
Prof. Valerie Hans slide show presentation on Social Science and Law
It's Not Just an Abuse Excuse - Mitigation Concepts From the Department of Justice (doc file)
Dershowitz, A. (2000). The Abuse Excuse. NY: Back Bay Books.
Fletcher, G. (1978). Rethinking Criminal Law. Boston: Little, Brown & Co.
Fletcher, G. (1983). "Justification" pp. 941-46 in S. Kadish (ed.) Encyclopedia of Crime and Justice.
Goldstein, A. (1983). "Insanity" pp. 735-42 in S. Kadish Encyclopedia of Crime and Justice. NY: Free.
Posner, R. (2004). Frontiers of Legal Theory. Cambridge, MA: Harvard Univ. Press.
Renteln, A. (2005). The Cultural Defense. NY: Oxford Univ. Press.
Wilson, J. & Wilson, D. (1998). Moral Judgment: Does the Abuse Excuse Threaten our Legal System? NY: Basic Books.
Last updated: Aug 21, 2010
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