Good morning, and congratulations, Colonel Jetly, on you retirement. That's fantastic.
Thank you for inviting me to comment on Bill C-203, which would amend section 98 of Canada's National Defence Act by repealing the self-harm element of the malingering charge. This would preclude Canada's military from punishing service members who harm themselves to avoid military duty.
I'm a professor at Chapman University in Orange, California. I'm also a former army JAG officer. I currently direct Chapman's Military and Veterans Law Institute, where law students and recent law school graduates, working under my supervision, represent veterans and service members in all types of legal matters. I previously co-authored a short article with a colleague, Ari Freilich, entitled “Self-Inflicted Wounds: How Military Regulations Prejudice Service Members”, which is what prompted an invitation to appear at this hearing. Unfortunately, Mr. Freilich was not able to appear—he had an immovable scheduling conflict—but I have incorporated his feedback into my remarks as well.
Turning to the issue, on one hand, we can certainly understand why a nation's military would be tempted to criminalize self-harm, especially on the eve of battle. Nobody, even the most disciplined and well-trained soldiers, will calmly run toward the jaws of death. We know that it takes incredible will and incredible bravery to resist that natural flight instinct. Some may conclude, in fact, that death or injury at their own hands, on their own terms, is better than death or injury by an enemy.
On the other hand, criminalizing self-harm hurts the most vulnerable among our troops. This is especially true as our understanding of post-traumatic stress disorder evolves and our military suicide rate steeply and continuously climbs.
I've learned through my 20 years of practising military and veterans law, which entailed six years on active duty, that convictions for the crime of malingering result in immeasurable permanent harm and suffering to our troops. It shames service members; it causes them to hide their distress; and it pushes them ever deeper into depression and closer towards suicide ironically. In shame, they avoid getting the help they need. It's no wonder that the United States faces a suicide epidemic among its troops. Last month, USA Today reported that the suicide rate among our troops was at a six-year high, at 25.9 per 100,000 troops. I've read that Canada has similar statistics, with more Canadian troops dying by suicide in a 10-year period than the number of troops killed in Afghanistan over a similar 13-year period.
I wanted to turn to just a few examples. Over the life of our clinic, we've encountered several cases of service members who had been severely punished for attempting suicide. Several years ago, we encountered a case of a decorated combat veteran who was tasked with defusing IEDs over multiple war tours. He was medicated and diagnosed with PTSD. While deployed and barely holding it together, he was “stop-lossed”, which meant that he was not able to return home on schedule. In distress, he shot himself in the chest. He readily conceded under hostile questioning from his command, while he was hospitalized in the psychiatric facility, that he had “wanted to die because he could not go back to combat.” His command never disputed that the suicide attempt was genuine, but they nonetheless saw his statement about not being able to go back to combat as admission of a crime. They saw no difference between his wanting to die because of his PTSD and a malingerer's fraudulent intent to preserve their own life at military expense.
As we argued in our Law Review article, other prohibitions on fraud or duty shirking are already sufficient to deter and penalize genuine malingering. Given the still-widespread misunderstanding and stigma around mental health injury and suicide, commands too often interpret any offence whose essential element is self-injury as a licence to punish and punitively discharge suicidal troops. This deters help-seeking, especially without clear due-process protections to prevent punitive treatment of people whose conduct is at least substantially motivated by mental injury or disease, whether diagnosed or not prior to the attempt.
Another one of our clients, a decorated 21-year-old combat veteran, was heavily medicated for diagnosed mental injuries, with a gashed wrist covered in scars and held together by four staples, when his team leader appeared in his psychiatric ward hospital room to threaten him with court martial for “attempting to injure or kill himself”. He was hospitalized in an army psychiatric hospital for five weeks before he received a stigmatizing misconduct discharge for cutting his wrist with a razor. He had no disciplinary record whatsoever. He was soon diagnosed with severe PTSD, and he nearly died of a second attempt, when his brother discovered him hanging from a rope.
Criminalizing suicide in the military is at odds with jurisprudence applied in the civilian sector. Most American civilian jurisdictions decriminalized attempted suicide by the end of the horse and buggy era. Over 50 years ago, drafters of the Model Penal Code wrote, “While attempted suicide is still viewed as [criminal] in a few states, we think it clear that this is not an area in which the penal law can be effective and that its intrusion on such tragedies is an abuse.”
The drafters also rejected the criminalization of non-suicidal self-injury. No American jurisdiction has criminally punished a suicide attempt since 1961. The California Supreme Court wrote 30 years ago that “all modern research points to one conclusion about the problem of suicide—the irrelevance of the criminal law to its solution”. The Federal Ninth Circuit court has agreed, saying that there is a “modern consensus” in this area of law.
Despite being out of step with modern law, the military nonetheless still punishes suicide attempts by its troops. Not surprisingly, the U.S. military's suicide and self-harm rate only continues to increase, despite these punitive responses to self-harm.
This also causes collateral damage under our system when there's a denial of VA benefits for those who need them the most. Most of the clients we represent in our institute are seeking an upgrade to their discharge level. This is because the Veterans Administration conditions most benefits on having an honourable or general level discharge.
The VA offers all kinds of robust benefits, including an educational benefit, which funds college tuition, books, fees and even a living stipend for veterans who are going to college full-time. However, in order to receive these benefits, service members must have been separated with a higher level discharge. Even a minor infraction can result in a general level and disqualify the service member from the educational benefit that's offered in the United States.
Service members who stand to benefit the most from that benefit are those with combat-related military occupational specialties: those who manned a weapon, those who served in the special forces, were ordinance experts and the like. These dangerous soldiering jobs have no civilian equivalent, so those needing educational benefits the most are those who saw the most combat, and those who are most likely suffering with PTSD and disciplinary infractions that seem to go hand-in-hand, frankly, with a PTSD diagnosis, often, unfortunately, including malingering.
For the above-stated reasons, I support Canada's proposal to repeal the self-harm provision from the definition of malingering, and I am happy to provide any additional information, as requested, or to answer any questions.
Thank you again for the opportunity to testify on this important matter.