Definition
To feign or simulate illness, physical disability, or mental incapacity in order to avoid a legal obligation, duty, or work requirement. In legal contexts, malingering is relevant chiefly in three settings: (1) workers' compensation and personal injury litigation, where a claimant may be alleged to be fabricating or exaggerating symptoms to sustain or inflate a claim; (2) military law, where feigning unfitness for duty has historically been a distinct offense; and (3) criminal proceedings, where a defendant may be alleged to be simulating mental illness to avoid prosecution, trial, or punishment.
The term encompasses both pure fabrication — inventing symptoms that do not exist — and exaggeration of genuine symptoms beyond their actual severity.
Common Language
Modern common usage (Wiktionary): To feign illness, injury, or incapacitation in order to avoid work, obligation, or perilous risk; also, to self-inflict real injury or infection in order to avoid such risk.
Historical common usage (Webster's 1913): To act the part of a malingerer; to feign illness or inability.
The gap between common and legal meaning is narrow but worth noting. Ordinary usage treats malingering as purely behavioral — shirking through pretense. Legal usage adds a layer of forensic consequence: in litigation and criminal proceedings, a finding of malingering is a formal adverse credibility determination, often supported by expert testimony and standardized psychological testing, with direct consequences for damages, competency findings, or criminal liability.
Common Confusion
Malingering is sometimes confused with two related but distinct concepts. Factitious disorder (formerly Munchausen syndrome) involves fabricating or inducing illness for psychological reasons — to assume a sick role — rather than for external material gain. The DSM-5 distinguishes the two explicitly on the basis of motivation. In personal injury and disability litigation, this distinction matters: malingering implies deliberate fraud; factitious disorder is a recognized mental health condition. Similarly, somatoform or somatic symptom disorders involve genuine subjective suffering without corresponding physical pathology. A claimant with a somatic disorder is not malingering in any legal sense, and conflating the two in expert testimony or judicial findings is a recognized source of error.
Why It Matters in Research
Researchers encounter malinger and malingering most heavily in three bodies of law that do not always cross-reference each other in secondary sources.
In workers' compensation literature, malingering allegations appear frequently in cases involving soft-tissue injuries, chronic pain, and psychiatric disability — conditions that are inherently difficult to verify objectively. Pre-twentieth-century treatises on employers' liability say little about the concept because the modern compensation system did not yet exist; look instead to negligence and assumption of risk doctrine for the earlier period.
In military law, malingering has been a codified offense under the Uniform Code of Military Justice (Article 115) since 1950, with antecedents in earlier Articles of War. Historical materials on military discipline will use the term in this specific statutory sense, distinct from civil litigation usage.
In criminal competency and insanity contexts, the term appears in forensic psychiatric evaluations and competency hearing records rather than in doctrinal legal writing. Researchers working with court files from the nineteenth and early twentieth centuries should be alert to the fact that formal psychological assessment tools for detecting malingering are a modern development; historical judicial determinations of feigned insanity relied heavily on lay observation and medical opinion that would not satisfy contemporary evidentiary standards.
The word also appears in insurance policy litigation, particularly in older cases involving disability insurance, where policy language sometimes expressly excluded claims attributable to self-induced or feigned conditions. The interpretive issues in those cases — what constitutes "feigning," what burden of proof applies — are not always well-indexed under the term malinger in legal databases; search also under fraud, misrepresentation, and disability exclusion.
Historical Dictionary Support
Black's Law Dictionary (2nd Ed.) offers a concise and accurate core definition: feigning sickness, physical disablement, or mental lapse or derangement, especially to escape performance of a task, duty, or work. The definition is serviceable but reflects the term's military-law origins more than its civil litigation applications, which were less developed at the time of that edition. The emphasis on "escaping performance of a task or duty" maps cleanly onto military offense doctrine; the workers' compensation and forensic psychiatric dimensions were just beginning to take institutional shape when Black's 2nd edition was prepared.
No significant divergence exists among the historical dictionary sources consulted here, but the absence of the term from many early American legal dictionaries is itself informative: malingering entered legal usage primarily through military law channels and migrated into civil contexts only as compensation and disability systems expanded in the twentieth century.
Jurisdictional Note
In civilian law, malingering is not itself a crime or tort; rather, it is a characterization that supports fraud claims, defeats damage claims, or undermines credibility. Military law is the primary jurisdiction where malingering is a distinct statutory offense. Standards for expert testimony on malingering in civil proceedings vary by jurisdiction and are governed by applicable rules on expert evidence.