Pre-menstrual Syndrome and Criminal Culpability: Sound or misguided defence for female offenders
The criminality of women has for quite some time been a neglected branch of knowledge of criminology. In the past, women were viewed as biologically inferior to men as they are seen as being more emotive, and calmer.[i] Consequently, a woman committing a criminal offence was considered an atypical act. On the other hand, a man committing a criminal offence was perceived as a symbol of manliness. Of the various factors to which women’s illegal activity is generally attributed, the most contentious is the organic situation associated with the presence and aetiology of premenstrual syndrome (PMS). Menstruation and related aspects are seen as taboo in various parts of the world including India[ii], and consequently, women from various realms of life are hindered from openly discussing issues concerning the same.
Menstruation has been stigmatised in our society’,[iii] based on orthodox notions associating menstruation with ‘impurity’ thereby leading to an unwillingness to talk about it normally. The women's movement recently attempted to eliminate misconceptions surrounding menstruation such as menstruating women being seen as having evil powers, by demonstrating that women are capable of carrying out their duties in the workplace at all stages of their menstrual cycle. Despite suffering from PMS, most women today can function satisfactorily in the workplace and carry out everyday functions. Each month, however, a small proportion of women, less than 5 per cent according to some estimates,[iv] of women become seriously disabled. These women, like Kumari Chandra,[v] are suffering from severe PMS. While the medical community has acknowledged PMS as a condition, the Indian legal system has only lately accepted it as a valid defence to penal acts, reigniting the debate about the legality of making a judicial issue of the monthly physiological changes experienced by many women.
PMS: Doctors’ perception
British physician and pioneer in the field of research on PMS, Dr Katharina Dalton defined PMS as the recurring of symptoms before menstruation and the full absence of symptoms after menstruation.[vi] There is no widely acknowledged medical opinion on the aetiology, symptoms, or medication of PMS. According to specialists, it is a condition that 70 per cent to 90 per cent of women encounter at some point in their lives.[vii] It is characterised by two types of symptoms: physical and mental. Swelling in the breasts, stomach swelling, headaches, and other physical complaints are common in women. However, they may endure severe mood fluctuations, resulting in irritability, sadness, a proclivity for aggression, and a proclivity for suicide, among other things.
PMS: defence for criminal liability
Premenstrual syndrome can be used as an affirmative defence to a criminal charge if the defendant can show that she was suffering from PMS at the time the incident occurred, and as a result of her condition, either the criminal offence was involuntary, or she did not have the frame of mind mandated by law for the commission of the crime. Temporary insanity caused by PMS has been cited as a defence in murder cases in various parts of the world and has occasionally resulted in a reduced sentence or penalty. In the case of Regina v. Craddock,[viii] the accused Sandie Craddock, an East London barmaid with a history of 45 convictions, was charged with attacking a colleague barmaid three times in the chest in a fit of rage. She pleaded diminished responsibility due to premenstrual stress syndrome. Craddock was penalised only for manslaughter and later released on probation. A year later Craddock was re-arrested for attempting to murder a policeman. Convicted on three new charges, Craddock again argued for premenstrual stress syndrome to mitigate her sentence and again received probation which was also upheld in appeal.
In another British case, Regina v. English,[ix] English killed her boyfriend by purposely slamming him against a post with her vehicle. Dr Dalton also testified in this case, claiming to have diagnosed English with a severe form of PMS. The court lowered the murder allegation to manslaughter and English pleaded guilty to the lesser offence. Since English behaved in ‘wholly extraordinary circumstances’, the judge considered PMS as a mitigating factor when sentencing her.
Following such precedents, the counsel for Kumari Chandra, an Indian woman accused of throwing three children down a well, pleaded that Chandra was suffering from premenstrual stress syndrome at the time of the occurrence. Following the trial court's rejection of this reasoning, Chandra was found guilty of murder and attempted murder and various other provisions of the Indian Penal Code. The issue raised before the appellate court was whether the defence of insanity, as under section 84 of IPC, be claimed by a woman suffering from premenstrual stress (PMS) syndrome?
The bench observed that even if the law relating to PMS being recognised as a reason for claiming the defence of insanity has not evolved considerably in India, the accused has the right to claim such defence and probability by demonstrating that she was suffering from severe PMS at the time of the act. The court ultimately determined that the appellant was able to prove her defence that her cognitive power of understanding the nature of her crime was impaired at the time of commission, which was induced by PMS, and that she was insane. She was granted the benefit of the doubt and was found not guilty on all counts.
Some women scholars[x] have criticised this judgment as outdated because of its anti-feminist propensity to be applied arbitrarily to the disadvantage of women. It is a two-edged sword: if this ailment may be utilised by women to plead absence of guilt, it can also be used against them in matrimonial/family cases to deny them custody of their children or to ruin their image and personhood as a victim of hormones.
To elaborate, the concept of female criminality has received little research in India. As a result, if PMS is used as a tool in criminal defence, it will reinforce the traditional view of menstruation as utterly shameful and women as extremely weak, biologically weaker than men, and incapable of contributing to society. Even if the woman is acquitted, she may be stigmatized as an ‘insane’ mother incapable of caring for and safeguarding her children, harmful to their dependents, untrustworthy, and beyond the possibility of reformation. This is one of the main reasons why the insanity defence should be utilised ‘only as a last resort’ and with a complete understanding of the societal consequences.
The debate has not yet been resolved, and one key issue that must be addressed is why is it so difficult for society to understand the logic behind a woman taking another person's life? Rather than branding a female criminal as ‘mentally ill’, attempts should be made to determine what factors prompted her to commit the crime, such as whether she has a history of victimisation that may have led to the offence. If the law is to be gender-neutral and inclusive in its approach, it must adapt its practice by understanding the differences in men's and women's circumstances.
[i]Dorothée Sturkenboom, ‘Historicizing the Gender of Emotions: Changing Perceptions in Dutch Enlightenment Thought’, Journal of Social History 34(1): 55–75, (2000) [ii] See ‘Tackling the Taboo of Menstrual Hygiene in the European Region’, https://www.euro.who.int/en/countries/kyrgyzstan/news/news/2018/11/tackling-the-taboo-of-menstrual-hygiene-in-the-european-region (accessed 20 April 2022). [iii] I. Johnston-Robledo and J. C. Chrisler, ‘The Menstrual Mark: Menstruation as Social Stigma’, in C. Bobel, I. T. Winkler, B. Fahs, et al. (eds), The Palgrave Handbook of Critical Menstruation Studies (Singapore: Palgrave Macmillan, 2020), chapter 17. [iv] See J. Potter, J. Bouyer, J. Trussell, and C. Moreau, ‘Premenstrual Syndrome Prevalence and Fluctuation over Time: Results from a French Population-Based Survey’, Journal of Women’s Health; 18(1): 31–39 (2009). [v] Kumari Chandra v. State of Rajasthan, 2018 SCC Online Raj 1899. [vi]Katharina Dalton, ‘Premenstrual Syndrome’, 9 Hamline L. Rev. 143 (1986). In fact, Dr Dalton is credited with having coined the term PMS; a study conducted by her shows a correlation between premenstrual women and criminal acts. See Katharina Dalton, ‘Cyclical Criminal Acts in Premenstrual Women’, The Lancet 316(8203): 1070-1071 (1980). [vii] S. A. Winer and A. J. Rapkin, ‘Premenstrual Disorders: Prevalence, Etiology and Impact’, Journal of Reproductive Medicine 51(4 Suppl):339–347 (2006). [viii] Regina v. Craddock 1981, 1 C.L. 49 [ix] Unreported decision of the Norwich Crown Court on November 10, 1981 [x] See Shivani Saxena, ‘Premenstrual Stress Syndrome, A Valid Criminal Defense: Rajasthan High Court https://www.bloombergquint.com/law-and-policy/premenstrual-stress-syndrome-a-valid-criminal-defense-rajasthan-high-court (accessed on 29 April 2022)
About the author
Dr. Shikha Sharma is currently working as an Assistant Professor of Law (Senior scale) in
Campus Law Centre, Faculty of Law, University of Delhi. She has a specialization in Trademark Law. Her area of interest includes Trademark law, Administrative Law,
Criminology, and Social Justice.