Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post-Traumatic Stress Disorder

Abstract

In common law, criminal culpability rests on two basic foundations of criminal intent, or mens rea, and a voluntary act, which comprises the actus reus. While much of the litigation in criminal cases concerns assigning the appropriate mens rea concept to the particular defendant’s mental state, relatively little debate focuses on the element of actus reus. Indeed, case law and commentators generally have devoted scant attention to fleshing out the voluntary act concept despite the historical consensus of both utilitarians and retributivists that one should not be considered morally or legally culpable for his or her involuntary actions. This paper conceptualizes an overall need to reinvigorate the actus reus requirement as a fundamental principal of criminal culpability. It does so by employing a contemporary problem facing the criminal justice system of combat veterans with Post-Traumatic Stress Disorder (PTSD) who commit acts of unlawful violence, including homicide, either in reflexive actions or during dissociative states triggered by re-experiencing combat-related stresses. While the veterans are often convicted of criminal offenses, studies on PTSD substantively support an argument that such violence may actually be conceptualized as automatism and, therefore, should not qualify as voluntary acts justifying criminal culpability. For example, mental health professionals describe PTSD as a neuropsychiatric disorder that involves hypervigilance, and hyperreactivity. Modern combat training is a likely correlate with its emphasis on muscle memory and reflexive responsiveness in the use of lethal weapons, which are adaptive, survival behaviors in the field of battle. The relationship to automatism is also evident in that PTSD is not merely a cognitive disorder as studies have shown PTSD-related alterations to brain structure and function and neurophysiological performance. Thus, this contemporary problem of PTSD in veterans due to wartime service provides a fresh perspective on which to reconsider the importance of the voluntary act requirement of criminal law.