Alcohol addiction raised as a defense in legal actions. Issue is whether alcoholism is an illness or a character defect

Alcoholism is getting a new hearing in American courtrooms - as a witness for the defense. Its credibility would seem to rest on the answers to these two questions:

Is habitual drunkenness a disease - a malady which is beyond the control of the victim - and is the alcoholic thus absolved of at least some of the responsibility for criminal or civil misdeeds?

Or is alcoholism a weakness, a character defect, which can be controlled largely through individual discipline and thus cannot be used as an excuse for personal misconduct?

The basic dispute itself is centuries old. In earlier years, alcoholics were ostracized.

Of late, however, the emphasis has been on treatment and rehabilitation. There has been a concerted move by some medical and psychological groups to get the public to view alcoholism as a sickness and the alcoholic as a victim.

The broader acceptance of the idea that alcoholism is a disease has led to efforts to look at this problem as similar to insanity when coping with it in connection with unlawful activity.

Most courts have flatly rejected alcoholism as an absolute defense in connection with violent crime, such as murder or rape. But the issue is arising more and more in the context of civil law and misdeeds.

Two instances are now attracting public attention:

Michael Deaver, a former White House aide, is using alcoholism as a defense in his trial on charges that he lied to a grand jury. He says that a combination of his habitual drinking and the drugs he used to fight his addiction impaired his memory and thus affected his grand-jury testimony.

Meanwhile, the US Supreme Court on Dec. 7 will hear arguments in a case involving the Veterans Administration (VA) policy that excludes alcoholism from a list of illnesses and disabilities that allow former military personnel additional time to claim education benefits.

Resolution of this case, say observers, could affect not only government social policy and potential public costs but also private insurance coverage and the burgeoning industry of providing care for alcoholics.

The National Association of Addiction Treatment Providers says the general public now understands that alcoholism is a sickness requiring treatment. NAATP has filed a friend-of-the court brief in the upcoming Supreme Court case, urging - along with the American Medical Association and various veterans groups - that the justices specifically define alcoholism as a disease.

The suit was brought by two former military men who were alcoholics and received honorable discharges from the Army in the l960s. Later they were denied educational benefits after treatment and recovery. They claim that the VA violated a federal law which prohibits bias on the basis of handicaps.

Government attorneys will argue before the Supreme Court that alcoholism - unlike a variety of diseases - is a result of voluntary behavior and that the denial of benefits was justified.

Paul Rothstein, a law professor at Georgetown University, points out that the public and scientific community are beginning to view alcoholism as ``not badness, but sickness.''

In the criminal context, however, he believes that alcoholism as a defense is likely to be used more successfully for white-collar crimes, as in the Deaver perjury trial, than for crimes of violence.

Professor Rothstein says that up to 80 percent of all violent crimes may involve alcohol - and acceptance of this defense for murder or rape or burglary would open the door to widespread litigation.

Rothstein explains that courts in the past have rejected the idea that certain biological or eating disorders can be a proper defense for criminal behavior. In l979, for example, jurists turned down the so-called ``Twinkie defense'' of Dan White, who argued that his over-consumption of sweets caused him to murder San Francisco Mayor George Mosconi and supervisor Harvey Milk.

There have also been efforts by psychiatric groups in recent years to classify so-called ``premenstrual syndrome'' (relating to the effects of the menstrual cycle on personality) and genetic tendencies toward violence and rape as categories of mental illness. Law enforcement and insurance groups, among others, have opposed these moves as opening the door to frivolous legal and insurance claims.

Herbert Fingarette, a philosophy professor at the University of California, Santa Barbara, flatly rejects the argument that habitual drinking should be a legal defense.

Professor Fingarette has written a soon-to-be-published book on ``The Myth of Alcoholism as a Disease.'' He points out that there is ``no systematically clear medical definition of what is a disease.

``It's a label,'' he says. ``And many researchers are abandoning the label of disease. Some are redefining it.''

Curt Scarborough, executive director of the Missouri-based American Council on Alcohol Problems, is also reluctant to classify alcoholism as a disease. He prefers the term ``addiction.''

Dr. Scarborough heads a federation of 30 state affiliates with roots in the temperance movement. He says these groups teach that acceptance of Christianity can help overcome alcohol addiction. - 30 -{et