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Is CTE a Defense for Criminal Behavior?

By Christopher Coble, Esq. | Last updated on

Scientists are still wrapping their heads around chronic traumatic encephalopathy (CTE), a neurodegenerative disease discovered, most notably, in ex-NFL players. Researchers still haven't found tests to definitively identify CTE in living people, but they are pinpointing signs and symptoms displayed by those with CTE before they die, from confusion, disorientation, dizziness, and headaches in early stages to dementia, depression, suicidality, social instability, and impulsive behavior in later stages.

And while science is still trying to sort out how CTE works, criminal attorneys are trying to figure out if the brain disease can work as a defense to criminal behavior. Here's a look.

First and Goal

Over at Sports Illustrated, Michael McCann speculates that attorneys for Kellen Winslow, Jr. -- charged with kidnapping, raping, and terrorizing multiple woman in California -- may argue that the former NFL player "is not responsible, or is at least less responsible, for the crimes because he suffers from neurological impairment or psychosis caused by playing football for most of his life." As McCann points out, Winslow has played football for most of his life, including ten years in the NFL, during which "he could have nonetheless suffered subconcussive hits and not realized their occurrence."

Researchers have tied CTE to a history of multiple head injuries, most common in contact sports like football, boxing, and hockey, wherein athletes suffer repeated banging of the head. The problem for Winslow, however, that he suffers from CTE:

CTE is only diagnosable with certainty in post-mortem examinations. This means that Winslow could not be tested for CTE in a way the medical community would consider valid. However, a physician could diagnose Winslow with symptoms associated with CTE. Those symptoms include belligerence, anxiety and paranoia--all of which could make one more likely to commit a crime. Of course, having symptoms of CTE does not prove the presence of CTE. There are other potential causes for CTE-like symptoms. Winslow's attorneys might order CT, MRI and PET scans to gather as much insight into Winslow's brain health as possible.

Additionally, even if Winslow can prove he has CTE, he and his lawyers will also need to prove that the neurological damage specifically impaired his judgment to the degree that he lacked the specific intent to commit the crimes with which he's been charged.

Off the Top Ropes

Former football players may not be the only athletes turning to CTE as a defense. World Wrestling Federation legend Jimmy "Superfly" Snuka, charged in the 1983 homicide of his girlfriend Nancy Argentino, claimed that his decades spent banging his head in the ring left him a "shell of a man." And while WWF matches may be scripted, the wrestling and the injuries are all too real.

"It's bad when you get hit in the head," Snuka told a judge in 2016. Snuka was deemed incompetent to stand trial based on symptoms of dementia and deteriorating mental condition, and ultimately the murder and manslaughter charges against him were dismissed.

Whether Winslow can meet that same bar remains to be seen, but we'll likely see more current and former athletes turned to the CTE defense, while scientists struggle to diagnose and treat the disease and courts contemplate how the symptoms of CTE impact criminal liability.

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