This article has been written by Vrinda Bhandarkar, 4th year student at S.D.M Law College, Karnataka
“Some called it Eve’s curse but she thought that was stupid, and the real curse of Eve was having to put up with the nonsense of Adam, who as soon as there was any trouble, blamed it all on her.”–Margaret Atwood
The world is a womb of mystery and quandary. Despite the dynamic nature of the present day society, the changes caused by genetic and technological evolution have still not transformed the archaic perspective of the world towards the behavioral changes and their relation to menstruation. In this regard, any form of psychological outbursts among women is frequently and dismissively linked to menstruation without aptly considering the impact of menstruation on women. In fact, the present day society has accepted the physically manifested concept of bleeding in menstruation to a certain extent and has even imbibed it in workplace values. However, irritability and rage that form some of the symptoms of Pre Menstrual syndrome are still misconstrued and blown out of proportion to a great extent.
The possibility of commission of a crime by a woman suffering from Pre Menstrual syndrome is a matter that must be viewed through the prism of several disciplines including Psychology, Law and Sociology. The foremost step involves consideration of the facts and circumstances of each case separately. Further, credible medical evidence and history of the accused must also be considered. In this regard, research shows a scant number of severe cases of Pre Menstrual syndrome that may possibly result in commission of crimes. Even in such cases, caution should prevail in determining the mens rea element harboured by the accused under the garb of premenstrual syndrome. Upon ruminating, it is pertinent to comprehend its consequences, prevalent international position and its judicial evolution in India. In this pursuit, the impact of incorporating premenstrual syndrome as a separate defense is to be analysed in the light of its effect on blooming equal opportunities for women in various sectors.
Indian statutory law has not expressly provided for premenstrual syndrome as a defense to absolve criminal liability. The first case of premenstrual syndrome defense to gain momentum in India was of one Kumari Chandra who was convicted of murder and attempt to commit murder under the Indian Penal Code, 1860 for allegedly pushing three children into a well. It is pertinent to note that the instant case was filed during the time when the U.S and U.K too were trying to comprehend the loose ends of PMS defense. The accused pleaded that she was a victim of moments of mental unsoundness and labouring under a defect of reason triggered by premenstrual syndrome, making her a subject to be exonerated under Section 84 of Indian Penal Code, 1860. The honourable High Court of Rajasthan acquitted the accused concluding that premenstrual syndrome could be a ground for unsoundness of mind despite the lack of domestic jurisprudence in this realm.
While this decision would seem to have seen miles ahead into the future by adapting to different possibilities that may cause legal insanity, it has been aptly criticised for having based itself on antiquated research, flawed application of legal principles to the facts and an undesired haste to arrive at an unconventional decision. The concept of mensrea and the inability of understanding the magnitude and illegality of the act performed by the defendant should have been the determining factor herein while applying Section 84 of IPC, 1860. Instead, the decision relied on past records of mental disturbance of the accused, in addition to citing redundant research that was insufficient to cause an acquittal. Therefore, the case resulted in an indigenous tussle between feminism, psychology and the basic tenets of Indian criminal jurisprudence. However, despite its overwhelming controversy, this case failed to pique the concrete curiosity of jurists and media making defense of premenstrual syndrome still an unfamiliar territory to trudge on.
Indian Legal Framework
In India, there is no explicit statutory defense of Premenstrual syndrome that is available to the defendant. Consequently Pre Menstrual syndrome and its symptoms including inter alia unwarranted irritability and rage is to be considered in relation to legal insanity. Thereby, the accused must be legally insane at the time of commission of offence as envisaged in Section 84 of Indian Penal Code, 1860 wherein two ingredients must be satisfied:
By reason of unsoundness of mind, the accused at the time of doing the act is either incapable of knowing:
a) The nature of the act or
The court must read the facts and circumstances in toto,i.e. before, after and during the commission of the offence in tandem to confirm legal insanity. Herein, merely proving that the accused was suffering from mental imbalance at the time of commission of offence is not sufficient and the impossibility of formation of mensrea element owing to premenstrual defence is to be firmly established. While the burden of proof lies on the Prosecution to prove the guilt of the accused beyond reasonable doubt, the special onus of establishing legal insanity under Section 84 of IPC, 1860 is upon the accused as enshrined in Section 105 of the Indian Evidence Act. Upon application of this principle to premenstrual syndrome, the defendant is required to show that:
a) She was suffering from premenstrual syndrome at the time of the commission of offence and
b) Owing to her condition, either that the criminal act was involuntary or that at the time of the criminal act, she did not possess the mental state required by law for the commission of a crime.
Thus, mere temporary derangement caused by premenstrual syndrome without meeting the ingredients of Section 84 does not qualify as legal insanity. As propounded by Lord Parker, the abnormality of mind arising must be so different from that of ordinary human beings that a reasonable man would term it abnormal. In this regard, Dalton pertinently remarked that premenstrual syndrome symptoms which are likely to result in criminal charges include sudden and uncontrollable emotions resulting in violence, confusion, amnesia, alcoholism, nymphomania and attention-seeking episodes. Lever furnished insight upon the gravity of premenstrual syndrome by stating that “premenstrual bad temper can sometimes go beyond verbal abuse to physical violence”.
Decoding the Nuances
The symptoms of Pre Menstrual Syndrome of physical discomfort, mood and behavioural symptoms and somatic complaints are experienced by a plethora of women of reproductive age varying between two days and a few weeks.The historical links of mental illnesses to women’s uterus is widely found in Egyptian and Greek texts. Subsequently, it gave rise to the term ‘hysteria’ which formed one of the most common reasons for admitting women into asylums in the 1800s, often without undertaking appropriate diagnosis. Fortunately, In the 1950s, the American Psychological Association declassified hysteria as a mental disorder. However, the association between crime and menstruation emerged prominently in a 1961 study by Katherina Dalton which observed that almost half of the subject women committed their respective crimes during menstruation or during the premenstrual period. Further, a number of studies conducted in the 1970s & 80s revealed that more offences were committed by women during a female’s Pre Menstrual week than at any other time of the month. Further, even though it is established inter alia through a research undertaken in 2008 that menstrual problems have an impact on psychological health, there is no evidence of any specific psychological disorders that are a result of premenstrual syndrome. Therefore, all possible chances of pleading the defense of Pre Menstrual syndrome is based on rare cases of aggravation of the general symptoms resulting from an abnormal response to normal hormonal changes. Moreover, a 2018 research showed that severe problems of Pre Menstrual Syndrome are suffered by a mere 5% of women of child bearing age and can be cured by administration of medication and development of a healthy lifestyle.Therefore, it is axiomatic that the general symptoms of Pre Menstrual symptoms are not potent to render a person legally insane, unless, in rare cases where the symptoms may overpower the ability to form the necessary mensrea element.
Pre Menstrual syndrome has been used as a mitigating factor as well as defense for a variety of offences in the United Kingdom from the 1950s. In the early 1980s, one Mrs. Craddock’sliability was reduced from murder to manslaughter of her fellow barmaid upon consideration of her lengthy criminal history which made it axiomatic that the accused “turned into an animal each month which forced her to act out of character.”To alleviate her dangerous position, she was placed on court-ordered progesterone. Further, Christian English was convicted of manslaughter under diminished responsibility owing to Pre Menstrual syndrome for driving into and pinning her lover against a utility pole subsequently resulting in his death. Similarly, based on the defendant’s psychiatrist testimony that the defendant was legally insane and incapable of murder in a Canadian case , the court reduced the charge to manslaughter but did not acquit the accused. Similarly, Australia has also used the PMS as a mitigating factor which is considered for awarding a more lenient sentence but never as a defence. In the U.S., a woman accomplished avoidance of a drink driving conviction by pleading that premenstrual syndrome had aggravated the effects of alcohol.But its applicability as a separate defense could not be analysed in People v. Santos, as Shirley Santos who was charged with assault against her infant daughter ultimately withdrew her plea of Pre Menstrual defense sought plea bargaining for firstdegree assault against her infant daughter. Therefore, the international perspective has mainly considered Pre Menstrual syndrome as a mitigating factor rather than a defense. In this regard, the gravity of the offense, mens rea element and medical evidence is required to be examined thoroughly. While determining the status of legal insanity of the accused in rare cases of severe Pre Menstrual syndrome, great caution should prevail.
While a prima-facie analysis makes the defense of premenstrual syndrome favourable to women, it is immensely disheartening to note that the existence of a separate defense of premenstrual syndrome acts as a double-edged sword and reinforces stereotypical beliefs against women. Firstly, a research unravels that women have a fear of being branded ‘neurotic’ which stops them from confiding their health problems relating to menstruation. Such an anathema will be aggravated if the defense of Pre Menstrual syndrome is accepted without meticulously examining the facts and circumstances of each case. Moreover, in an astonishing survey conducted in United Kingdom, female employees opened up about discrimination and pejorative comments at work owing to their menstrual cycle. Secondly, the lack of behavioural control attributed to women around the time of menstruation has been widely offered as a justification for denying positions of responsibility to women. In this regard, a disappointing admittance by the Central Government revealed that women officers were still not considered eligible for higher posts in the army as male officers are not ready to accept them yet. Further, a disheartening approach of paying women lesser than men for the same work is observed in several countries.
As is axiomatic from the avid research surrounding the linkage between menstruation and crimes, there is no reliable and firm evidence that menstruation acts as a factor in commission of crimes. Even in a minority of women who experience its serious effects, the test of legal insanity established under Section 84 of IPC, 1860 is to be strictly applied in order to satisfy the negation of mensrea. Further, evidence of defect of reason at the time of the commission of offence triggered by premenstrual syndrome should not be made a gender-specific offence. Therefore, in order to impede misuse, meticulous analysis of facts and circumstances surrounding each case under consideration is crucial. The social implications of embracing the defense of Pre Menstrual syndrome without establishing its overwhelming gravity of causing inability of constituting mensrea element as has been undertaken in Kumari Chandra’s case is much too serious for the holistic growth and empowerment of women. Equating Pre Menstrual syndrome with a horrifying condition among women which causes them to commit crimes in cold blood merely transports the world back to the era where women were conveniently branded as witches and hysteric. Thus, it is essential to build a strong sense of sensitivity towards women suffering from Pre Menstrual syndrome rather than eyeing them suspiciously as one regards a prospective criminal. Therefore, the defense of Pre Menstrual syndrome forms a shield which is capable of bleeding its wielder if used unwittingly.