FEMALE CRIMINALITY: PRE MENSTRUAL TENSION AS THEIR CRIMINAL DEFENCE

CRIME BY WOMEN Until recently, women were virtually invisible in the literature on crimes. It is generally believed that women are conformis...

CRIME BY WOMEN

Until recently, women were virtually invisible in the literature on crimes. It is generally believed that women are conformist to the societal norms. This conformity is because of natural gift to them of love and compassion, which is true and very relevant for a grooming society. But, as human beings, women are also subjected to inherent weakness of greed, motive and other facctors generating the criminal mentality. There was a time which we all have witnessed, when a woman was also used to be an accomplice in a crime, but punishment was only prescribed for men, the perfect example of this was offence of ADULTERY (Section 497 Indian penal code,1860), which in today's date is no more an offence.

There are numerous of theories by different scholars, who have deduced the rationale behind the factors, which have led women to become criminals. Theories of female criminality is totally a different topic of discussion and will be dealt with in upcoming blogs.

In this blog, we are majorly concerned about, how a biological factor of women have become their defence to commit an offence.

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CRIMINAL DEFENCE

In simple terms, ciminal defences are those exceptions, the existence of which can lead to exonerate an accused from ciminal liablity of committing a crime. There are many General Defences and Private Defences mentioned in our Indian Penal Code, 1860, which, if their existence is proved in the court of law during the trial of accused, may result in acquittal of the accused, though he had committed that crime. Some of the defences are the following: 

Act done which a person was bound by Law ( SECTION 76)

Act done which a person was justified by Law ( SECTION 79)

Act committed as a result of Accident or misfortune (SECTION 80)

Act committed by reason of Unsoundness of mind (SECTION 84) and so on......

Above-mentioned are those defences which are available for each and every person. But, the type of biological defence and the reasoning behind it which we are going to discuss, is specifically available to women.

BIOLOGICAL FACTORS AS CRIMINAL DEFENCE

Now,let's discuss about those biological factors, the existence of which, when proved in the court of law, has led to acquittal of female criminals from their ciminal act.

PRE MENSTRUAL TENSION : It is a condition that affects a woman's emotions, physical health, behavioral pattern, during certain days of menstrual cycle. It starts generally 7 to 11 days prior to the menstrual cycle and leads to sudden hormonal changes in a woman. Such hormonal changes causes - anxiety, depression, sadness, irritability, aggresiveness and many other behavioral changes in a woman. This factor has been used many times by a female criminal as a defence to commit a crime.

Although it is not cleared that, whether women are prone to high proclivity towards committing of crime during their generative phases or during their period of hormonical changes, yet, there are many cases, which have taken into consideration these changes, either as mitigating factor at the time of deciding quantum of punishment or sometimes to completely acquit them.

You must be thinking, that in our Indian Penal Code, there is no such defence mentioned which could be used in the favor of female criminal, on the reasoning that she committed the crime while in her Pre Menstrual tension and should be exonerated.

The legal defence which is connected to this biological factor, whether in penal laws of India or of other countries is, "Unsoundness of Mind", which, in our Indian Penal Code,1860 is categorically defined 

Under Section 84 as : "Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary of law".

For the logical and legal connection, on how this section has been connected with the biological factor of a woman and has made a defence to commit a crime, we need to have a look on the case laws which decided the fate of the female criminals based on this defence.

INDIAN CASE LAW

KUMARI CHANDRA vs. STATE OF RAJASTHAN (click to read more)

The appellant was accused of pushing three children into the well. Two of them were somehow rescued but one boy drowned and died. The trial court had convicted the accused for the offence of murder of the boy and for the offence of attempt to commit murder of other children. Appeal was raised to High court, where a defence was taken that, at the time when alleged act was committed, the accused was under Pre Menstrual Stress (PMS) which led her to be aggressive and consequently she was not in her conscious state at the time when act was committed. The counsel for the accused also stated the past instances, when at the time of PMS the accused used to become very anxious and aggressive in her behavior and in the same manner, the act she did was a result of her PMS which led her to "madness" during that period.

DECISION OF THE COURT: The court went on to accept the accused's plea of Unsoundness of mind due to PMS and consequently acquitted her from all charges. The court relied on the past instances of the accused, when at the time of PMS she used to behave and act in an unusal manner and in her unconscious state. The judgement also cites and relies on several medical reports from which it can be concluded that, PMS could be raised as a defence in the face of "unsoundness of mind".

However, the court also stated in its judgment that, the aspect of law which equates mental state of PMS  with legal insanity has not been developed in India.

INTERNATIONAL CASE LAW

REGINA vs CRADDOCK  (click to read more)

In this case the accused Sandie Craddock was arrested for stabbing her fellow mate to death. At the trial of her, plea of PMS was raised and was argued that, she was not in a condition to determine what was the nature of the act she is committing.

The court had taken into consideration the plea of defence as PMS and used it as a mitigating factor and her conviction was reduced to the offence of Manslaughter.

GERALDINE RITHCER CASE of  VIRGINIA (click to read more about this case)

An orthopaedic surgeon was driving towards her home from a party. In mid way she was stopped by the cops to do her breathalyzer test to detect whether she has committed offence offence of drunk and driving. But, the lady refused to do the test and started using abusive languages to cops and also kicked one of them at his groin area.

Plea was raised at her trial that, what she did was not a result of drunk and drive, but it was an act due to her PMS and as a result of it, she was not in a conscious state when she committed the act.

DECISION : The court had accepted the plea of PMS and held her not guilty of any offence as she was not in her conscious state of mind because of PMS (Pre menstrual Stress) and as a result is acquitted.

MY OPINION

Though in this blog we have come acrossed some provisions and case laws in which PMS (Pre mentstrual stress) has been used in favor of the accused and was successful also, but, the other side of the coin is, we don't even have handful of cases in which such plea was succeeded as a defence to commit crime. The reasons are very obvious: 

• There is no established subjective evidence to show that how and upto what extent and during which time period of PMS if an act is committed, it could be used as a defence.
• There is no established nexus till now, which can show that, exactly there exists a relation between PMS and the act committed.
• As mentioned by the Judge in the case of Kumari chandra vs. State of Rajasthan, that, the aspect of law which can equate the PMS with legal insanity has not been developed in India, is true till date.
• Using of such mental condition as a defence will broaden the scope of Insanity which is used as a defence when a crime has been committed,which is not in the favor of welfare of the society.

As a reader of this blog you are most welcome to share your views regarding such defence in the criminal law.

THANK YOU.

Nikhil Tak ( Campus Law Centre, Faculty of Law, University of Delhi).