PTSD Defense – Does it apply to California criminal cases?

You are charged with sexual assault in connection with a domestic violence matter. However, you believe you committed the crime because you were easily startled due to your post-traumatic stress disorder (PTSD).

Is it possible to use your PTSD to challenge the charge?

The answer largely depends on the facts of your case and how serious your mental health condition is. In some cases, PTSD can be used to:

1. defend against a criminal charge,
2. receive a more favorable sentence,
3. secure probation, and/or
4. secure entry into California’s military diversion.

Note that PTSD is a mental illness that is triggered by either experiencing or observing some type of traumatic event. Possible symptoms may include:

• flashbacks,
• nightmares, and
• severe anxiety.¹

PTSD is a mental health illness that often plagues combat veterans and war veterans.

1. When can you use PTSD as a legal defense?

There are times when a person’s PTSD is so severe that it renders the person mentally insane. If so, and you then commit a crime, you may be able to use your PTSD to support an insanity defense.

An insanity defense is a valid defense to contest criminal charges. The defense works no matter if you were permanently insane or temporarily insane when you committed a crime.²

Under California law, you are “legally insane” if, at the time you committed a crime, you:

• did not understand the nature of your act, or
• could not distinguish between right and wrong.³

Note that a defendant has the burden of proving insanity.

Also, the defendant must prove insanity by a preponderance of the evidence. You will meet this burden if you can show that it was more likely than not that you were insane at the time of your crime.⁴

Expert witnesses and expert testimony are often used to help meet the burden of proof for insanity.

If you or your criminal defense attorney is able to prove insanity, you will be committed to a mental health treatment facility instead of jail or state prison.

2. Can you use PTSD as mitigation evidence?

Most often, yes. You can usually present mitigating circumstances before a court to reduce a charge or lessen the severity of a penalty.

If you were suffering from PTSD at the time you committed a crime, you can often submit that fact into evidence.

Your judge then might be inclined to replace a jail or prison sentence with:

• probation, or
• a treatment program.

This is because if you were suffering from some sort of mental health problem, your criminal behavior is not considered as blameworthy as if you had no health issue.

3. Can you raise evidence of PTSD to get probation?

Many times, yes. California law says that if you are convicted of a crime, then prior to sentencing a trial court may consider whether you committed that crime because of:

• sexual trauma,
• traumatic brain injury,
• PTSD,
• substance abuse, or
• mental health problems stemming from military service.⁵

If a judge concludes that you committed your offense because of one of the above conditions, the law says that the judge should favor awarding you with probation in lieu of custody in jail or prison.⁶

In addition, the judge can order you into a treatment program during your probationary period.⁷

4. What about entry into military diversion?

Military veterans and active-duty military personnel in California are often eligible for military diversion if they:

1. committed a misdemeanor crime (as opposed to a felony), and
2. suffered from trauma or a mental health issue at the time of the offense.⁸

If granted diversion, you will receive healthcare treatment rather than spend time in custody. Any criminal charges are then dismissed upon successful completion of your treatment program.⁹

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