AFFLUENZA DEFENSE AND ABUSE EXCUSES
ROY ARANDA, PSY.D., J.D.
The recent “rich boy” trial in which a successful Affluenza Defense in a Fort Worth Juvenile Texas Court that resulted in a sentence of 10 years of probation in lieu of up to 20 years in prison for the 16-year-old defendant, Ethan Couch, charged with driving intoxicated and killing four pedestrians, has drawn staunch criticism by psychologists and many who decry not only the light sentence, but the “affluenza” defense.
Jacksonville, Florida psychologist, Gary Buffone, who specializes in family wealth advising, described affluenza as “a condition in which children – generally from richer families – have a sense of entitlement, are irresponsible, make excuses for poor behavior, and sometimes dabble in drugs and alcohol.”
Buffone stated “that the term wasn’t meant to be used as a defense in a criminal trial or to justify such behavior”, and that, “The simple term would be spoiled brat.”
In no uncertain terms, Buffone decried the defense as “laughable” and disposition “horrifying” and “reinforced by the judge’s actions.”
Equally critical was psychologist Suniya Luthar:
Dr Suniya Luthar, a psychologist who specializes in the costs of affluence in suburban communities, told The Associated Press that her research at Columbia University in New York has shown that 20 percent of upper middle-class adolescents believe their parents would help them get out of a sticky situation at school, such as being caught for the third time on campus with a bottle of vodka. The judge’s sentence reinforces that belief.
“What is the likelihood if this was an African-American, inner-city kid that grew up in a violent neighborhood to a single mother who is addicted to crack and he was caught two or three times … what is the likelihood that the judge would excuse his behavior and let him off because of how he was raised?” Luthar asked.
“We are setting a double standard for the rich and poor,” she added, noting the message is “families that have money, you can drink and drive. This is a very, very dangerous thing we’re telling our children.”
Not everything, however, is as appears in the eye of the observer. And the eye of the observer may at times be myopic and unchallenging.
Putting aside some catchy yet stereotypically-laden defense strategies (to wit, “Affluenza Defense”), my suggestion is to not too quickly dismiss personality traits and MSO (mental state at time of offense) when asked to fulfill the role of a forensic evaluator because there may be negative publicity and a defendant may be tried in the court of public opinion. There may be an objective, defensible basis to use a personality construct as partial defense or basis to exculpate due to mitigating circumstances surrounding the offense which diminishes responsibility and results in reduced liability.
A problem, of course, is using a non-existent diagnosis. And generic descriptions. And use of labels that elicit immediate autonomic reactions and negative connotations.
The “celebrity status” of a case doesn’t help.
Having money tends to elicit reactions that a defense strategy is a ploy to allow the defendant to get away with it.
There are many misconceptions about the insanity defense:
- The insanity defense is overused.
Reality: The actual plea rate is 0.9%, and only 26% of insanity defendants are successful.
- Defendants who plead guilty are usually faking.
Reality: A significant number of insanity defendants are diagnosed with a major mental disorder at the time of psychiatric evaluation, and most have prior histories of mental hospitalizations.
- Pleading insanity is a strategy used by defense attorneys to get their clients acquitted.
Reality: There is a 93% concordance rate between the opinions of mental health examiners and final court decisions.
- The insanity defense is used almost exclusively in cases that involve violent crimes.
Reality: Non-violent offenses accounted for 31.6% of defendants indicted on felony charges.
- There is no risk to the defendant who pleads insanity.
Reality: In order to plead insanity, the defendant must admit to committing the crime in question, which negates a not guilty verdict. This can be particularly risky when the other evidence against the defendant is weak or circumstantial.
- Insanity acquittees spend much less time in custody than do defendants convicted of the same offense.
Reality: Insanity acquittees spend nearly twice the amount of time in detention. For those who have committed nonviolent offenses, they spend up to nine times as long as offenders convicted of similar crimes.
- Insanity acquitees are quickly released from custody.
Reality: Following an NGRI verdict, between 84 and 95% of NGRI acquittees are hospitalized and only 4% are conditionally released.
- Trials involving an insanity defense almost always feature “battle of the experts”.
Reality: Mental health examiners agree on a primary diagnosis in 81% of the cases they examine.
Every forensic case is an N = 1 study and merits a comprehensive objective evaluation.
Some “abuse excuses” are bogus. Some are not. And there may be several shades of gray between bogus and not bogus.
And many mental health cases have an underlying core of pretextuality.
Michael L. Perlin, for instance, defines pretextuality as “the courts’ acceptance — either implicit or explicit — of testimonial dishonesty and their decisions to engage in dishonest decisionmaking in mental disability law cases.”
So, what happens when you do have a rich kid who really was mentally screwed up?
A “colorful” figure, Alan Dershowitz, wrote extensively on the “abuse excuse.”
See, (Fill in the Blank) Made Me Do It:
Mr. Dershowitz used the term “abuse excuse” in a January 1994 column about the trials of the Menendez brothers for killing their parents and of Lorena Bobbitt for cutting off her husband’s penis. Soon after, ABC’s “Nightline” turned the phrase into a bankable commodity when it held a “town meeting” that was “stimulated” (Mr. Dershowitz’s word) by his column to address the question: “Is abuse an excuse?”
Dershowitz believes the abuse excuse has become “a license to kill and maim” and is an “excuse for violent retaliation.”
Dershowitz goes on to talk about the battered woman’s syndrome, the Menendez brothers trial, and Lorena Bobbitt who “was found not guilty by reason of temporary insanity because she persuaded a jury that John Wayne Bobbitt abused her sexually.”
Several abuse excuses proposed by Dershowitz are:
Premenstrual stress syndrome, which was the grounds for the acquittal of a woman doctor charged with drunken driving in Virginia; the black rage defense, the idea that anger from racial injustice can trigger and justify violence; and Super Bowl Sunday syndrome, which avows that there is a direct link between men watching the pro football championship and violence against women.
Other abuse excuses are deplored by Dershowitz in the article, The Newest Abuse Excuse for Violence Against Women:
Restrictions on movement and curfews which confine people to their homes for prolonged periods, and increased unemployment, poverty and insecurity, which have forced men to spend more time at home, as well as the increase in crowded conditions in the home, have contributed to the increase in violence against women, including sexual abuse, within the family.”
The New York State Office for the Prevention of Domestic Violence provides the following resource: Understanding Domestic Abusers. Common Excuses for Domestic Abuse.
All abusers look for something to blame their behavior on. Common excuses that abusers give for their behavior include:
- Substance abuse
- Childhood victimization or exposure to violence
- Post-Traumatic Stress Disorder
- Traumatic brain injury
The following source provides a compendium of abuse excuses. Among my favorites are “Chronic Lateness Syndrome” and the notorious “Twinkie Defense.”
What about Zoloft? And the Monty Python Defense? The Lesbian Defense? And, is soda making your teen violent?
The proposed “Black Rage” defense was revisited on the 20th anniversary of Colin Ferguson’s mass shootings on the LIRR in Long Island on 12/07/93.
PTSD has had some success as a partial defense. See PTSD as a Criminal Defense: A Review of Case Law that reviewed 47 cases in which PTSD was used as a criminal defense.
Baz’s defense team portrayed him as suffering from post-traumatic stress disorder due to his childhood exposure to violence during the Lebanese Civil War. They argued further that Baz’s actions were triggered by the killing of 29 Muslims just four days earlier by Baruch Goldstein in Hebron, West Bank. The jury rejected this argument, and on December 1, 1994, Baz was convicted on one count of murder, 14 counts of attempted murder, and one count of criminal use of a firearm.
In individuals, symptoms of affluenza can include: workaholism; an addiction to chaos; low self-esteem; depression; a loss of future motivation; an inability to delay gratification or tolerate frustration; a false sense of entitlement. Affluenza is frequently accompanied by all manners of addictive/compulsive behaviors.
Excuses have been inculcated in our society since childhood. They are as commonplace as mother’s “apple pie” and “my dog ate my homework.”
See the following site that lists 61 excuses for not doing homework.
Technology is becoming a favorite homework excuse.
And technology-based excuses fit in well with adults too: “my computer crashed” and other variants.
Computer addiction (and tech addiction) can have deleterious consequences as noted below:
Harvard Medical School’s Computer-Addiction Services identifies the following symptoms of computer addiction.
1) Having a sense of well-being while at the computer.
2) Inability to stop the activity.
3) Craving more and more time at the computer
4) Neglecting family and friends
5) Feeling empty or depressed and irritable when not at the computer
6) Lying to family and friends about activities
7) Problems with school or work
And in the following article: Study: Internet Addicts Suffer Withdrawal Symptoms Like Drug Users.
Look for technology-based excuses and syndromes increasingly to exculpate criminal behavior.
For instance, Internet Gambling, included under Gambling Disorder in the DSM-5, can lead to criminal behavior such as “forgery, fraud, theft, or embezzlement to obtain money with which to gamble.”
And Internet Gaming Disorder is listed in the DSM-5 as a Condition for further study:
Persistent and recurrent use of the Internet to engage in games, often with other players, leading to clinically significant impairment or distress….” 
“Internet gaming disorder may lead to school failure, job loss, or marriage failure.” These may, conceivably, result in legal ramifications. For instance, domestic violence stemming from increased stress at home.
- Excessive use of social media and cyberbullying
- Cyber porn
- Viewing pornography online (minors and transmitting images)
Psychologists increasingly are called upon to evaluate people in a variety of contexts to assess criminal conduct. The public perception of many types of defendants is skewed by media sensationalism and stereotypes. Psychologists face many challenges and obstacles as they are torn between allegiance to the side that retained them and maintaining professional honesty consistent with the Ethical Principles of Psychologists and Code of Conduct and the Specialty Guidelines for Forensic Psychology, abiding by the law, having a solid knowledge about risk and forensic assessment including the many limitations, and the consequences to society and the individuals being assessed of committing Type I (False Positive) and Type II errors (False Negative).
When psychologists testify as experts, their evaluations must comply with standards set forth primarily by Daubert, although some states continue to use the older Frye Standard. In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the court “must determine whether or not the method by which that evidence was obtained was generally accepted by experts in the particular field in which it belongs.”
In New York, where the Frye Standard is very much alive, the Frye test applies to novel scientific evidence. An Affluenza Defense may be considered novel and might be subject to a Frye challenge.
The newer and more widely accepted Daubert Standard is used in federal courts and most state courts. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the court considers several factors to determine if the scientific evidence is valid:
1) whether the theory or technique in question can be and has been tested
2) whether it has been subjected to peer review and publication
3) its known or potential error rate
4) the existence and maintenance of standards controlling its operation
5) whether it has attracted widespread acceptance within a relevant scientific community.
Texas uses a variant of Daubert. In E.I. du Pont de Nemours & Co. v. Robinson, 923 SW2d 459 (Tex 1995), the court considers the following factors (two were added by Robinson):
1) the extent to which the theory has been or can be tested;
2) the techniques’ potential rate of error;
3) whether the theory has been subjected to peer review and publication;
4) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community
5) extent to which the technique relies upon the subjective interpretation of the expert; and
6) the non-judicial uses that have been made of the theory or technique.
Psychologist G. Dick Miller testified as an expert at Ethan Couch’s trial. It is unclear if his testimony regarding affluenza satisfied Texas’s standard set forth above. Or, if it was required during the sentencing phase. Miller acknowledged in an interview with Anderson Cooper that the term “affluenza” was not a medical term, and that he had used it for 20 years and it means, “you have too much and you don’t know how to distribute it.”
Is an Affluenza Defense viable? Well, at least in this instance it was. Bogus? Non-bogus? An abuse excuse à la Dershowitz? Time and peer reviewed research will tell. Quite a bit has been written, after all, about affluence, bad parenting, and raising spoiled, irresponsible kids. More importantly, do we actually need catchy terms to refer to in an exculpatory defense?
In a day and era in which most anything can be served up as an “abuse excuse”, how to distinguish between the bogus and non-bogus defenses and multitude shades of gray becomes an art form that requires keeping up to date with state of the art research and practice standards in forensic assessment. The standards are – and should be – high as the stakes are high.
To conclude, whether or not you agree with the outcome of the Ethan Couch trial, it may be difficult to pass judgment after the fact, free from distractions of media sensationalism and emotional and gut reactions. I urge careful reflection on the fact that it is the defense attorney’s job to zealously represent his or her client, and far more than vigorously prosecute a defendant, it is the prosecutor’s job is to see to it that justice is served. The nuances of the law are particularly complicated as are the intricacies of defense strategies and expert testimony. It is important that we not stray from the ethical tenets of our profession, vigorously uphold scientific know-how and keep abreast of evolving research and standards, and routinely monitor our own performance and seek to improve our skills.
 “Affluenza” slammed as defense for wealthy Texas teen’s fatal DWI wreck, AP, December 12, 2013. Available at http://www.cbsnews.com/news/affluenza-slammed-as-defense-for-wealthy-texas-teens-fatal-dwi-wreck
 Top myths about the insanity defense, EAPL Student. Available at http://www.eaplstudent.com/component/content/article/158-insanitydefense
 ‘Half-wracked prejudice leaped forth’: Sanism, Pretextuality, and Why and How Mental Disability Law Developed as it Did, Journal of Contemporary Legal Issues, Vol. 10, Pp. 3-36, 1999. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=200768
 (Fill In The Blank) Made Me Do It, NY Times, October 16, 1994. Available at http://www.nytimes.com/1994/10/16/books/fill-in-the-blank-made-me-do-it.html?pagewanted=all&src=pm
 Huffington Post, September 19, 2005. Available at http://www.huffingtonpost.com/alan-dershowitz/the-newest-abuse-excuse-f_b_7584.html
 2013. Available at http://www.opdv.state.ny.us/professionals/abusers/excuses.html
 Colin Ferguson (mass murderer), Wikipedia, December 6, 2013. Available at http://en.wikipedia.org/wiki/Colin_Ferguson_(convict)
 Brooklyn Bridge shooting, Wikipedia, October 18, 2013. Available at http://en.wikipedia.org/wiki/Brooklyn_Bridge_shooting
 The Affluenza Project, 2013. Available at http://www.theaffluenzaproject.com/home/bookstore/
 The Affluenza Project, 2013. Available at http://www.theaffluenzaproject.com/home/affluenza/
 The dog ate my homework, Wikipedia, June 17, 2013. Available at http://en.wikipedia.org/wiki/The_dog_ate_my_homework
 61 Funny excuses for not doing homework, 2006-2013 Fanpop Inc. Available at http://www.fanpop.com/clubs/random/articles/111594/title/61-funny-excuses-not-doing-homework
 Technology becomes most popular homework excuse, The Telegraph, September 8, 2010. Available at http://www.telegraph.co.uk/education/educationnews/7989203/Technology-becomes-most-popular-homework-excuse.html
 Computer Addiction Disorder Symptoms and Treatment, Norman A. Rubin, August 17, 2007. Available at http://www.livinghealthy360.com/index.php/computer-addiction-disorder-symptoms-and-treatment-3-49982/
 Time Health and family, February 19, 2013. Available at http://healthland.time.com/2013/02/19/study-internet-addicts-suffer-withdrawal-symptoms-like-drug-users/
 DSM-5, APA, p. 586.
 Id. at 795.
 Id. at 797.
 Revenge Porn: Scary & What to Do About It? https://royaranda.wordpress.com/2013/11/29/revenge-porn-scary-what-to-do-about-it/
 Cyberbullying Conference Tidbits, https://royaranda.wordpress.com/2013/11/19/cyberbullying-conference-tidbits/
 August 3, 2011. Available at http://www.ap-ls.org/aboutpsychlaw/SGFP_Final_Approved_2011.pdf
 Type I and type II errors, Psychology Wiki, Available at http://psychology.wikia.com/wiki/Type_I_and_type_II_errors
 See Wahl v. Am. Honda Motor Co., 181 Misc. 2d 396, 398-99, 693 N.Y.S.2d 875 (Sup. Ct., Suffolk Co. 1999).