Original Article

Road-mapping the Journal of Victimology

and Victim Justice
Contradictions Around 1–18
2021 National Law
Premenstrual University Delhi
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DOI: 10.1177/2516606921994030
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Upma Gautam1 and Sonali Sharma1

Abstract
Even though the term premenstrual syndrome has entered the common lexi-
con, yet it still remains a Gordian knot that needs to be untangled by not only
the medical profession but also the legal profession. Resolving this conundrum
requires a balancing of the dichotomy between ‘medicalizing’ women’s lives and
a need to affirm women’s experiences. There exist several legal impediments
while presenting evidence of this syndrome for diminishing the responsibility of
a woman in a criminal trial. The present research is undertaken with an aim to
determine the relationship between female criminality and premenstrual syn-
drome. The research further examines the credibility of utilizing the evidence of
premenstrual syndrome to excuse a woman from criminal responsibility during
a trial. This article is a step in the direction of pushing the envelope for spurring
a holistic development of law, which is inclusive of the specific needs of women.

Keywords
Female criminality, premenstrual syndrome, insanity, criminal responsibility

1
University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, Delhi, India.

Corresponding author:
Sonali Sharma, University School of Law and Legal Studies, Block C, Guru Gobind Singh Indraprastha
University, Sector 16-C, Dwarka, New Delhi 110078, India.
E-mail: sonali.phd.021165@ipu.ac.in
2 Journal of Victimology and Victim Justice

Introduction
Time and again the debate around female criminality has garnered the interest of
several theories including biological, sociological as well as psychological.
Females were generally regarded as passive and a violent woman was considered
as unnatural. They were not considered as ‘bad’ rather they were thought to be
either ‘sick’ or ‘mad’.1 As time passed female criminality was associated with
premenstrual syndrome howbeit, this association is not free from its fair share of
detractors. The dispute surrounding premenstrual syndrome has boggled the mind
of researchers through ages. The arguments around its symptoms have been a
topic of heated debate amongst the medical professionals. Similarly, the point of
discussion that has been bothering the legal fraternity is whether evidence of
premenstrual syndrome can be admitted in a criminal trial and if so, then to what
extent can it exculpate a woman from her criminal responsibility. It is claimed that
the evidence of premenstrual syndrome if accepted to grant a plea of insanity will
protect the women who have committed the act, which was not in their control.
On the other hand, it has been argued that if the premenstrual syndrome is admitted
in the court of law then it could lead to stigmatization and a general bias that
women are not liable for their criminal act because of their hormones.2 This article
will bring in a meeting point between these two arguments and propose a
discussion to bring forth the fact that the law as it stands does not incorporate a
female’s perspective while dealing with situations.

Premenstrual Syndrome: Opening the Pandora’s Box

The term mental health determines not only an absence of mental disorder but
also outline a level of cognitive abilities as well as emotional well-being. Mental
disorder can be identified as a behavioural pattern, which results in any disability
or distress which is not a manifestation of normal development or culture of any
individual. The variation in mental disorder is reflected through gender as well.
From an analysis of mental health indices, one can fairly observe a significant
deviation in the pattern of psychological disorder that affects men and women.
Across the globe, it has been seen that signs of common mental disorders such as
anxiety, somatic disorders, depression and distress are more common amongst
females withal, males show a higher percentage in addictions and psychopathic
personality disorders.3 The reason behind this variation is more than often placed
on the hormonal factors, which are related to the reproductive system of women.4

1
P.L. Easteal, Women and Crime: Premenstrual Issues, 31 Trends Issues Crime Crim. Justice, 1–3
(1991).
2
B. McSherry, Premenstrual Syndrome and Criminal Responsibility, 1(2) Psychiatry Psychol. Law
139–151 (1994).
3
Department of Mental Health and Substance Dependence, Gender Disparities in Mental Health,
World Health Organization. https://www.who.int/mental_health/prevention/genderwomen/en/
4
B.L. Parry, Hormonal Basis of Mood Disorders in Women, In Gender and Its Effects on
Psychopathology 61–84 (E. Frank ed., 2000).
Gautam and Sharma 3

Since time immemorial menstrual cycles have been considered a factor, which
plays a role behind the behavioural changes that are observed in many women.
Women undergo not only physical but also emotional difficulties during the
premenstrual and menstrual phase. Premenstrual and menstrual phase displays
several signs such as irritability, sadness, tension, restlessness, sleep disturbances,
migraine, lack of concentration and dysphoria. In most of the cases, these
symptoms are mild withal, roughly 5%–8% women go through severe troubles,
which can be linked to functional impairment as well as distress.5 The early
medical reports on this topic termed the symptoms, which were clinically
significant as premenstrual tension6 or premenstrual syndrome.7
The symptoms that reflect premenstrual syndrome can last anytime between 2
days to approximately 14 days. Generally, it is observed that the symptoms aggra-
vate 6 days before the menstrual cycle and are at a peak 2 days before it. Women
often complain of irritation and anger as these symptoms start early as compared
to any other symptoms. Sometimes it is observed that these symptoms tend to
follow even during the next menstrual cycle howbeit, the literal interpretation of
this syndrome determines that there needs to be a phase, which is clear from any
symptoms. Generally, it is seen that this phase is the time period before the
ovulation.8
In most of the cases, it is found that women have a similar set of symptoms,
which are followed in their cycle; however, one can also observe patterns of
comorbidity in a woman who is going through a premenstrual phase. In some
cases it can be seen that she had another psychological disorder at any other point
of time during her life—lifetime comorbidity—, in other it can be observed that
she had an ongoing psychiatric condition and simultaneous premenstrual symp-
toms that do not form a part of the co-occurring disorder—concurrent comorbid-
ity—, lastly she might be undergoing an ongoing psychological disorder which
aggravates during the premenstrual phase which is termed as a premenstrual exac-
erbation.9 Lifetime comorbidity between premenstrual syndrome and any mood
disorder can generally range from 30% to 70%.10 Similarly, it is observed that
anxiety disorders are also higher in women who have the premenstrual syndrome.
Moreover, women who are going through premenstrual syndrome have a higher

5
K.A. Yonkers et al., Premenstrual Syndrome, 371(9619) Lancet 1200–1210 (2008).
6
R. Frank, The Hormonal Causes of Premenstrual Tension, 26 Arch NeurPsych. 1053–1057 (1931).
7
R. Greene and K. Dalton, The Premenstrual Syndrome, 1 BMJ 1007–1014 (1953).
8
T. Pearlstein et al., Pretreatment Pattern of Symptom Expression in Premenstrual Dsyphoric
Disorder, 85 J. Affect. Disord. 275–282 (2005); P.M. Meaden et al., Timing and Severity of Symptoms
Associated with the Menstrual Cycle in a Community-based Sample in the Midwestern United States
134 Psychiatry Res. 27–36 (2005).
9
M. Steiner and L. Born, Diagnosis and Treatment of Premenstrual Dysphoric Disorder: An Update
15 (suppl. 3) Int. Clin. Psychopharmacol. S5–17 (2000).
10
T.B. Pearlstein et al., Prevalence of Axis I and Axis II Disorders in Women with Late Luteal Phase
Dysphoric Disorder 20 J. Affect. Disord. 129–134 (1990); T.B. Mackenzie et al., Lifetime Prevalence
of Psychiatric Disorders in Women with Perimenstrual Difficulties, 10 J. Affect. Disord. 15–19
(1986); H. Wittchen et al., Prevalence, Incidence and Stability of Premenstrual Dysphoric Disorder in
the Community 32 Psychol. Med. 119–132 (2002).
4 Journal of Victimology and Victim Justice

tendency to have a panic attack when they are exposed to any panicogenic agent.11
It is a known fact that most women suffer from premenstrual syndrome
howbeit, there are a few who goes through a severe form of premenstrual
syndrome, which is termed as a premenstrual dysphoric disorder. If the courts are
to accept these syndromes as a mitigating factor while imparting sentences to the
accused then they must understand their nuances such as their causes, diagnosis
as well as their treatment. The premenstrual dysphoric disorder is categorized as
a depressive disorder by the American Psychiatric Association.12 It has been
estimated that roughly 3%–8% of women suffer from this disorder.13 Symptoms
of the premenstrual dysphoric disorder are somewhat similar to that of premenstrual
syndrome; however, they are present in a more severe form.
Over the period of time, several researchers have tried to determine the
relationship between premenstrual syndrome and criminal law. The father of
modern criminology, Cesare Lombroso conducted a study on female criminality
in the year 1984 and concluded that out of eighty women who were arrested for
fighting with the public officers, seventy-one were going through their menstrual
cycle.14 His research gave a boost to the study of an eminent sexologist, Krafft-
Ebbing, who opined that a judicial system must give significant value to emotional
influences which are beyond the control of a woman who is going through a
menstrual cycle.15
In the year 1945, Cooke in his research demonstrated that 84% of the crimes of
violence that were committed by women during either during their premenstrual
phase or early menstrual phase. In another study in 1953, the researchers found
that out of forty-two women twenty-five (62%) had committed the crime while
they were menstruating or just before their cycle began.16
A profound activist of women’s right and a noted defence expert witness for
the premenstrual syndrome, Dr Dalton opined that any abnormal condition, which
occurs in every cycle, can be termed as a symptom of this syndrome if it occurs
only during the menstrual phase and dies down after it. In the year 1959, she
found that 46% of the patients in the psychiatric ward and 53% of the cases of
attempted suicide were caused during menstruation or premenstruation.17 In the
year 1961, she observed that 49% of the criminal acts that were committed by
women were during the 8-day time period, which constitutes premenstrual as well
as menstrual phase. She noted that in 27% of the women, the symptoms of
premenstrual tension were present and 63% of them committed the crime while

11
Wittchen et al., Prevalence, Incidence and Stability, supra note 10; K.A. Yonkers, Anxiety Symptoms
and Anxiety Disorders: How Are They Related to Premenstrual Disorders, 58 J. Clin. Psychiat.
62–67 (1997).
12
Yonkers, Premenstrual Syndrome, supra note 5, at 1200.
13
C. Ro, The Overlooked Condition That Can Trigger Extreme Behaviour, The Health Gap (16
December 2019). https://www.bbc.com/future/article/20191213-pmdd-a-little-understood-and-often-
misdiagnosed-condition
14
J. Abplanalp, Premenstrual Syndrome 3(1) Behav. Sci. & L. 103–115 (1985).
15
T.L. Riley, Premenstrual Syndrome as a Legal Defence, 9 Hamline L. Rev. 193–194 (1986).
16
J.H. Mortan et al., A Clinical Study of Premenstrual Tension, 65 Am J Obstet Gynaecol 1182 (1953).
17
K. Dalton, Menstruation and Acute Psychiatric Illness, BMJ 148–149 (1959).
Gautam and Sharma 5

they displayed these symptoms.18 In the 1980, she pointed out that progesterone
treatment was successful in treating the women who committed crimes as a result
of premenstrual syndrome.19 In another study in the year 1986, she described three
commonly observed symptoms of premenstrual syndrome that were visible in a
woman who commits a crime: firstly, depression which leads to suicide, arson,
shoplifting or smashing windows secondly, irritation which lead to a complete
loss of control and can be termed as an irresistible impulse taking the control of
the woman and thirdly, psychosis which was induced due to premenstrual
syndrome and can be seen in the form of amnesia, paranoia and hallucination.20
In the year 1971, Ellis and Austin discovered that 41% of the aggravated forms
of crime by women were committed either 4 days before the menstrual cycle or a
day after the cycle is complete or during ovulation.21
In the year 1983, Carney and Williams categorically stated that it is agreed by
the medical fraternity that premenstrual syndrome can be the major factor behind
several psychological abnormalities, which in turn affect the behavioural system of
a woman.22 In the same year, Clarie confirmed a well-founded link between a
psychological disorder and premenstrual syndrome.23A similar observation was
made by Riley in the year 1986 wherein it was stated that medical professionals
who have studied premenstrual syndrome agree that several women are affected in
such a manner that they are unable to fathom anything or make the right choices.24
Marc Press also said that the symptoms of premenstrual syndrome are
headache, excessive thirst or increase of appetite, lethargy and bloating. He
claimed that it is not that every woman suffers from such severe symptoms. These
signs can increase from 7 to 14 days before the menstrual cycle and in most of the
cases disappear with the menstrual cycle. The premenstrual syndrome can affect
not only the body of a woman but also her psychological senses.25
Cohen and others observed the premenstrual symptoms of five hundred and
thirteen women between the age group of 36 and 44 years and verified that 6.4%
of the women suffered from a form of psychiatric morbidity.26 In the year 2004,
Dr Singh and others conducted a study in Punjab, India and noted that several
behavioural changes such as mood swings, depression, irritation and aggression
takes place in a woman during premenstrual syndrome. These behavioural
changes have a tendency to affect women to such an extent that they have no

18
K. Dalton, Menstruation and Crime, BMJ 1752–1753 (1961).
19
K. Dalton, Cyclical Criminal Acts in Premenstrual Syndrome, Lancet 1070–1071 (1980).
20
K. Dalton, Premenstrual Syndrome, 9(1) Hamline L. Rev. 143–154 (1986).
21
D. Ellis & P. Austin, Menstruation and Aggressive Behaviour in a Correctional Centre for Women,
62(3) J. Crim. L. Criminology & Police Sci. 388–395 (1971).
22
R.M. Carney and B.D. Williams, Premenstrual Syndrome: A Criminal Defence, 59 Notre Dame L.
Rev. 253 (1983).
23
A.W. Clarie, Psychiatric and Social Aspects of Premenstrual Complaint, 4 Psychological Medicine
Monograph 1–58 (1983).
24
Riley, Premenstrual Syndrome, supra note 15.
25
A. Press, Not Guilty Because of PMS, November Newsweek 111 (1982).
26
L.S. Cohen et al., Prevalence and Predictors of Premenstrual Dysphoric Disorder (PMDD) in
Older Premenopausal Women: The Harvard Study of Moods and Cycles, 70(2) J. Affect. Disord.
125–132 (2002).
6 Journal of Victimology and Victim Justice

control over themselves and can end up committing crimes, which can be petty as
well as serious. They even accepted that these psychological symptoms, which are
associated with menstruation, have the ability to be contended as a defence of
insanity.27
These studies display a crucial relationship between premenstrual syndrome and
criminal behaviour hence it becomes imperative to examine how this syndrome is
analysed as a defence or a mitigating factor for women over the period of time.

Global Understanding of Premenstrual Syndrome

as a Defence of Insanity
The plea for the defence of insanity is an age-old concept that was even propagated
by Plato who proposed that people who have no control over their mind are not
responsible for their acts and must be treated differently.28 The traces of this
defence is reflected even in the Jewish law wherein it was stated that children,
idiots and lunatics are not liable for their acts as they are unable to differentiate
between right and wrong.29
This defence was solidified in the courts of England where in the year 1723
Justice Tracey in the case of Rex v. Arnold30 gave the wild beast theory. A new test
to determine the dogmas of this defence was narrated by the defence lawyer,
Thomas Erkshine in the case of Rex v. Hadfield.31 Thomas Erkshine proposed that
the defence must be given on the basis of the state of mind of the accused at the
time of the offence. It must not be mandatory for the accused to be in a constant
state of madness as the true character of insanity is enshrined in delusion.
The most landmark judgment on the defence of insanity came in the year 1843.
The five rules that were laid in this case have governed the defence of insanity
until date in most of the countries. Daniel McNaughten was acquitted for the
assassination attempt on Robert Peel and murder of Edward Drummond in the
case of R v. Daniel McNaughten.32 This acquittal caused a furore, which leads
the Queen herself to interfere. A fifteen judges bench was asked five questions and
the answers to these questions laid down the famous McNaughten’s Rules.
Broadly speaking the rules laid that no man will be held guilty of a crime if at the
time of the act he is under a disease of the mind and thereby due to defect of the
reason he is unable to differentiate right from wrong or does not know the nature
and quality of his act.
The McNaughten’s Rules were criticized widely, which prompted a new
irresistible impulse test in the United States of America, which was first utilized
27
H. Singh et al., Premenstrual Syndrome (PMS) The Malady and the Law, 26 (4) J. Indian Acad.
Forensic Med. 129–131 (2004).
28
5 Plato, The Laws (George Burges trans., 1868).
29
B. A. Weiner, Not Guilty by Reason of Insanity: A Sane Approach, Chi.-Kent L. Rev. 1057–1085
(1980).
30
How. St. Tr. 16 (1723), 695.
31
How. St. Tr. 27, 1281.
32
Eng. Rep. 2 (1843), 718).
Gautam and Sharma 7

in the case of Parsons v. State.33 This test was based on the causal element of mind
that lead to the act howbeit, this new development received the similar fate as
McNaughten and a new test called the Durham Rule was laid in the case of
Durham v. United States.34 The Durham Rule or the Product Test claimed that an
accused is not liable for his acts if they were a product of his mental disease. This
test was also criticized for being vague and creating an aimless fight between
lawyers and doctors about legal and psychiatric jargons.
In the case of McDonald v. United States,35 the courts adopted a new standard
to determine the defence of insanity. This standard was established by the
American Law Institute and was a combination of cognitive and volitional prongs.
This standard faced huge criticism after United States v. Hinckley36 and was
replaced by the Federal Insanity Defence Reform Act, 1984. The burden to prove
insanity was shifted on the accused.
The defence of insanity developed under the shadow of McNaughten’s rules in
the common law countries and remained within the same broad parameters but at
the same time premenstrual syndrome as an evidence for claiming defence of
insanity took different directions in various countries.

Development of Premenstrual Syndrome as an Evidence

for Claiming Defence of Insanity in United Kingdom
Premenstrual Syndrome has been used for claiming a defence for insanity in
England since the 1800s. In the year 1845, a woman was acquitted of shoplifting
and two women—one of whom had killed her paramour and the psychiatrist
testified that she had trouble in her uterus—were also released of murder charges
in the year 1851. All these women claimed that they had committed the crime
under the influence of temporary insanity, which was the result of suppression of
their menstrual cycle.37 Two cases have laid the founding stone for development
of the laws in England in the year 1980. The first case was of R v. Craddock,38
(later, R v. Smith39) and the other was R v. English.40
Sandie Craddock was a barmaid who had committed criminal offences at
various instances between 1970 and 1979. Offences such as assault, theft and
arson were present in her record. She had murdered a fellow barmaid and during
the trial, Dr Dalton gave the testimony that she was suffering from premenstrual
syndrome. Her diagnosis was on the basis of the cyclical pattern of criminal

33
2 So. 854 866, Ala. 1886.
34
214 F.2d 862 (D.C. Cir. 1954).
35
312 F.2d 847 (DC Cir. 1962).
36
525 F. Supp. 1342 (D.D.C. 1981).
37
A.D. Spitz, Premenstrual Syndrome. A Critical Review of the Literature, 80(4) J. Indiana State
Med. Assoc. 378–382 (1987).
38
525 F. Supp. 1342 D.D.C. 1981.
39
1981, 1 C.L. 49.
40
This decision came in the year 1981 and was delivered by Norwich crown Court. This was an
unreported decision.
8 Journal of Victimology and Victim Justice

behaviour and a severe deficiency of progesterone. As the jury accepted her plea
for diminished responsibility, she was held guilty for manslaughter. Sandie’s
sentence was delayed for 3 months and she was treated for progesterone treatment.
At the stage of sentencing, Dr Dalton testified that her condition had improved
with regular treatment. The court considered premenstrual syndrome as a
mitigating factor and released Sandie on probation provided that she should
complete her treatment. Alas! Later that year she did not take the treatment for 4
days and on the fourth day, she threw a brick out of the window. She reported
herself to the police after that act. She was again given the progesterone treatment
and released by the court. Later on, she changed her name to Smith. In the year
1981, she attempted to commit suicide and wrote a poison pen letter to threaten a
police officer while she waited behind the police station with a knife whereby she
was charged for carrying an offensive weapon. She contended automatism,
however, the plea was rejected but her sentence was reduced to probation because
of the premenstrual syndrome. It was argued by her council that every offence
was committed during her menstrual cycle.
In yet another case where on the testimony of Dr Dalton the victim successfully
pleaded premenstrual syndrome as a ground for a defence of insanity was the case
of Christine English. English murdered her lover—a married man—by ramming
him against a pole. It was proved through evidence that a fight had occurred
between the two after which English claimed that she wanted to ‘bump him and
hurt him’. She pleaded guilty for the offence of manslaughter. Dr Dalton testified
that English had not eaten for nine hours before the said incident and she was
suffering from premenstrual syndrome due to which she was not only irritable but
also aggressive. Additionally, she started menstruating merely a few hours after
the incident. Purchas J. accepted her plea and reduced the charge to manslaughter
on account of diminished responsibility due to premenstrual syndrome. Further,
English was banned from taking alcohol and was instructed to take meals at
regular intervals.
In the case of R. v. Reynolds,41 the accused committed matricide and thereafter
arranged the crime scene in a way to make it look like a burglary. Dr Dalton gave
the testimony in this case as well. She claimed that the accused was suffering from
a premenstrual syndrome, which was accepted by the higher courts, which reduced
her sentence.
These cases show that the English courts are willing to accept the plea of
diminished responsibility on the basis of premenstrual syndrome. They consider
the plea of premenstrual syndrome as a mitigating factor for reducing the charges
of murder to that of manslaughter.

41
(1988) Crim. L.R. 679 C.A. Crim. Div.
Gautam and Sharma 9

Development of Premenstrual Syndrome as an

Evidence for Claiming Defence of Insanity in
United States of America
In the case of United States v. Harris,42 the psychiatrists as well as physicians
testified in the court of law that the accused woman was insane (morally). The
reason behind her insanity was a severe case of dysmenorrhea due to which she
was suffering from hysteria as well as mental derangement. After discussing the
matter at length, the woman was found not guilty.43
In the year 1982, the first case wherein the accused successfully pleaded
premenstrual syndrome was People v. Santos44 wherein the woman was accused
of attacking her child. The woman contended that the reason behind her
unacceptable behaviour was a black-out, which she suffered due to premenstrual
syndrome. Although the end result of the case was fulfilled through plea-
bargaining, still the case holds significant importance in the field of law. This case
proved the validity of the defence in the court of law as she was able to plead
diminished responsibility on the basis of premenstrual syndrome.
In the year 1986 in the case of State v. Lashwood,45 an unsuccessful plea for the
premenstrual syndrome was raised. Even-though the psychiatrists confirmed that
she was suffering from premenstrual syndrome the court followed the legal
principles and while rejecting her plea held that she could decipher between right
and wrong.
In the year 1991 in the case of Commonwealth v. Richter,46 a woman pleaded
diminished responsibility for the acts on account of premenstrual syndrome. The
woman was accused of driving erratically and when she was caught by an officer
she displayed that she was under the influence of alcohol. Additionally, it was
contended that she had assaulted the police officer as well. The gynaecologist
testified that she had moderate premenstrual syndrome. Though the court did not
expressly mention premenstrual syndrome, it considered that she was irritable and
hostile and thereby it acted as a mitigating factor behind her acquittal.
In the year 2001 in the case of United States v. Mortan,47 the court did not
admit the evidence of premenstrual syndrome wherein a woman was charged with
assault by dangerous weapon. The woman could not convince the court that her
premenstrual syndrome was severe enough to obstruct her knowledge of right and
wrong.
The evidence of premenstrual syndrome to claim the plea of diminished
responsibility is permitted in only those states, which allows the defence of
diminished responsibility. The Insanity defence Reforms Act, 1984 permits
diminished responsibility howbeit it must be proved through testimony of an
expert witness. The testimony must be capable of proving that the accused was
42
106 U.S. 629.
43
Riley, Premenstrual Syndrome, supra note 24, at 193.
44
N.Y. Crim. Ct. 3 Nov 1982.
45
384 N.W.2d 319, 321 (S.D. 1986).
46
No. T90-215256 (Fairfax County Gen. Dist. Ct. June 4, 1991).
47
2001 CCA Lexis 202 (NMCM 99 00830 17 Jul 2001).
10 Journal of Victimology and Victim Justice

suffering from premenstrual syndrome and had committed the act whilst under the
influence of this syndrome.

Development of Premenstrual Syndrome as an Evidence

for Claiming Defence of Insanity in Canada
The premenstrual syndrome was used as a defence for dismissing criminal charges
in minor offences only before the 1980s howbeit, this situation changed after that
when the courts began accepting the evidence of premenstrual syndrome as an
excuse for shoplifting. Later on, it was even considered in two cases in Toronto as
a mitigating factor for introducing probation.48 In the 1988, the defence of
diminished responsibility was given on the ground of premenstrual syndrome in a
case in Nova Scotia. In this case, the psychiatrists testified that the accused was
insane within the definition of insanity under the Canadian Criminal Code and the
woman was held guilty for manslaughter.49

Development of Premenstrual Syndrome as an Evidence

for Claiming Defence of Insanity in India
The application of premenstrual syndrome as a reason for claiming the defence of
insanity is of recent origin in India. In the case of Kumari Chandra v. State50 in the
year 2018, the Rajasthan High Court in India granted relief to a woman who had
killed one child and gravely injured two others by throwing them into a well. The
woman contended that she had committed the act as she was undergoing
premenstrual syndrome. A psychiatrist, her neighbours as well as a teacher who
had taught her during her school days testified that she behaved in an erratic
manner whenever her cycles were approaching and became alright after the cycle
was over. She was even treated by a doctor for this during her childhood. The
defence of insanity as given in the Indian Penal Code is based on the rules that
were laid down after the McNaughten’s ruling. India neither applies the rule of
diminished responsibility, Durham rule nor irresistible impulse test.
The tussle between the lawyers on premenstrual syndrome as an evidence for
claiming insanity is an endless one. A similar battle is being fought outside the
legal world as well where several researchers are arguing the positive as well as
the negative effects of terming premenstrual syndrome as a ‘disease of mind’ to
claim the defence of insanity.

48
J. D’Emilio, Battered Woman’s Syndrome and Premenstrual Syndrome: A Comparison of Their
Possible Use as Defenses to Criminal Liability, 59 (Spring) St. John’s L. Rev. 558–587 (1985).
49
Easteal, Women and Crime, supra note 1, at 2.
50
2018 SCC Raj. 1899.
Gautam and Sharma 11

Premenstrual Syndrome: Cutting the Gordian Knot

The debate surrounding premenstrual syndrome as an evidence for giving a
defence of insanity has garnered an immense amount of attention not only from
the legal profession but also from the medical profession. Those who support the
argument that premenstrual syndrome should be allowed as an evidence for
granting the plea of defence of insanity base their opinion on the ideology that it
will prevent the conviction of women who could not control their actions due to
this syndrome. It has also been suggested that premenstrual syndrome is the
leading cause in cases where women exercise physical violence.51 It has been
argued that the difference in the rate of crime between men and women lies in
their biological variations. A rarity in the number of women offenders can be
found in their biological base.52 Dr Dalton has vehemently supported the view that
several women act in an unpremeditated manner as they are suffering from
premenstrual syndrome.53 Furthermore, the criminal experiences of many women
are not protected by defences such as provocation or self-defence hence, it is
impertinent to formulate a special defence that caters to the needs of women.54
Despite garnering immense support from various researchers it has witnessed
a backlash from several domains. It cannot be denied that women face cyclical
changes every month due to the menstrual cycle but to term it in a way to prove
that every woman who goes through these cyclical changes is mad is preposterous.
At the very beginning, it has been argued that there exists no scientific explanation
that every woman who is undergoing premenstrual syndrome will be aggressive
or violent.55 Moreover, treating premenstrual syndrome as an evidence for granting
defence of insanity is like treating every woman as mad.56 It has been seen since
time immemorial that women with any kind of deviant personality are termed
either as a ‘mad woman’ or a ‘bad woman’.57 It is an accepted belief that such
woman is functioning against the socially determined and accepted personality
traits of a woman.
During mid-nineteenth century, the medical theories accepted that the
reproductive organs of females were the driving force that controlled the
functioning of not only their body but also mind and personality. This medical
opinion was followed even in Freud’s model of psychoanalysis.58As the time
elapsed, the focus shifted from the reproductive organs to the hormones and with
English cases such as Craddock (Smith) and English it moved towards
premenstrual syndrome. In the twentieth century, a relationship was discovered

51
J. Lever, PMT: The Unrecognised Illness 79 (1979).
52
W. Gove, The Effect of Age and Gender on Deviant Behaviour: A Biopsychosocial Approach in
Gender and the Life Course 138 (A. Ross ed., 1985).
53
K. Dalton, The Premenstrual Syndrome and Progesterone Therapy (2d ed., 1984).
54
McSherry, Premenstrual Syndrome, supra note 2.
55
M. Parlee, The Premenstrual Syndrome, 80 Psychol. Bull. 454 (1973); J. Ussher, Reproductive
Rhetoric and the Blaming of the Body, In The Psychology of Women’s Health and Health Care 44
(P. Nicolson and J. Ussher eds., 1992).
56
E. Holtzmann, Premenstrual Syndrome: No Legal Defence, 60 St John’s L. Rev. 712 (1986).
57
N. Chodorow, Feminism and Psychoanalytic Theory (1989).
58
Id.
12 Journal of Victimology and Victim Justice

between premenstrual syndrome and female criminality. It is a common point of

argument that deviant behaviour by a woman is often blamed on how her
reproductive system differs from men. For many, premenstrual syndrome is the
latest addition in the never-ending list of theories that determine female criminality
through their anatomical characteristics rather than searching for how gender
inequality has played a major role in female criminality.59
Another major cause of concern lies in the fact that if the premenstrual
syndrome is being treated as an exculpatory ground then it can lead to stigmatization
and discrimination against women in general and especially those who are
suffering from premenstrual syndrome or premenstrual dysphoric disorder.60
There are a very minuscule number of women who undergo premenstrual
dysphoric disorder howbeit treating it as a ground for claiming defence of insanity
can lead to women being categorized as a gender that is periodically unstable
hence not suited for any major post or task.
The medical opinion on treating premenstrual syndrome as a ground for
insanity is not unanimous. There exist a diversity of opinion on the relationship
between premenstrual syndrome and criminality. Several medical professionals
believe that women who come with the problem of premenstrual syndrome are
more than often suffering from depression.61 Dr Dalton testified that hypoglycaemia
can also be a symptom of premenstrual syndrome and can produce an excessive
amount of adrenalin, which can lead to a state of impaired unconsciousness or
automatism. She has also testified that temporary psychosis is also a characteristic
symptom of premenstrual syndrome.62 However, several doctors do not agree
with this ideology.63 It has been argued that premenstrual syndrome can also
become a ground for non-bona fide women who can misuse it. Further, a woman
who is experiencing only mild symptoms of premenstrual syndrome can also use
it to escape justice.64 Proving these elements becomes a difficult task in a society,
which treats women as an angelic and delicate figure who cannot act as a devil
and if she does anything that goes against these accepted beliefs then she is mad.
In order to claim the defence of insanity in the countries governed by
McNaughten’s rule, the defendant must prove that at the time of committing the
act she was suffering from a disease of mind or unsoundness of mind to such an
extent that she could not know the nature or quality of her act or that the act was
wrong or illegal. Hence, firstly it must be proved that premenstrual syndrome is a
disease of the mind. This becomes difficult as all the symptoms of premenstrual
syndrome are not accepted universally by all the medical professionals.
Additionally, she must prove that she was suffering from this disease of the mind,
which arose from a cause that is inherent and substantially impaired her mental
abilities to such an extent that she was unable to know the nature or quality of the
act or did not know that her act was wrong or illegal. There are no scientific

59
Easteal, Women and Crime, supra note 1, at 2.
60
See Carney and Williams, Premenstrual Syndrome, supra note 22, at 253.
61
Easteal, Women and Crime, supra note 1, at 2.
62
Dalton, Cyclical Criminal Acts, supra note 19, at 1070.
63
M. Sweet, Periods of Joy, SMH, April 1996, at 11.
64
Easteal, Women and Crime, supra note 1, at 2.
Gautam and Sharma 13

evidence that premenstrual syndrome can affect the cognitive abilities of a

woman.65 Further scientific evidences can be made admissible only with
recognition given by the legislation.66
The controversies surrounding the premenstrual syndrome have now
transgressed the boundaries of the medical profession and has entered the domain
of the legal system. The women who are pleading premenstrual syndrome as a
defence are relying on the argument that this syndrome must be treated in a similar
manner as all the other disorders. This syndrome is often treated as a neurotic
disorder due to its similarity with the symptoms. This syndrome often goes not
only undetected but also untreated.67 As has been observed many researched have
been conducted over the period of time that links premenstrual syndrome with a
crime. Despite this premenstrual syndrome is not widely accepted by all legal
systems as a defence for committing a crime.
Premenstrual syndrome is a physiological disorder68 and does not acknowledge
any financial, cultural, ethical, social or geographical boundaries. It is a known
fact that it affects most of the women in the world. However, it is true that its
effect may be observed severely in some women and mildly in others.69
Nonetheless, a consensus on the definition or the effects of the premenstrual
syndrome is still an on-going discussion in the medical profession.70 Even though
this syndrome has been defined over and over again still as Dr Anthony Clair once
said, it is a nightmare to reach a probable definition of this term.71
It is true that acceptance of mental disorders as a defence in any legal system
comes only after it has been recognized by the medical profession but if the same
norm is followed in the case of premenstrual syndrome then it will be a cause of
grave concern for the women in our society. The judicial system will constantly
face the question whether a woman who is suffering from premenstrual syndrome
is to be given the same opportunity as is given to any person who is going through
a disorder that has been medically accepted over the period of time. A legal system
gives a defence to any accused who can prove in the court of law that he was
suffering from a mental disorder due to which either he did not know the nature
of his act or he could not decipher that his act was illegal or wrong. Hence, the
trouble with using premenstrual syndrome is that whether it can be included in the
category of diseases that can affect the cognitive faculties of an accused to such
an extent that she did not know the nature of her act or could not understand that
her act was wrong or illegal.72 Time and again the question of the premenstrual

65
B. Sommer, Cognitive Performance and Men-strual Cycle, In Cognition and the menstrual cycle
(J.T.E. Richardson ed., 1992).
66
P.C. Giannelli and E.J. Imwinkelried, Scientific Evidence 1–35 (1986).
67
J.H. Morton, The Treatment of Premenstrual Tension 166 (11) Int. Rec. Med. Gen. Pract. Clin.
505 (1953).
68
P.C.B. MacKinnon and I.L. MacKinnon, Hazards of the Menstrual Cycle 1(4966) BMJ 555 (1956).
69
Katherine Dalton, Once a Month: The Original Premenstrual Syndrome Handbook (1978).
70
Tracy Nevatte and P.M.S. O’Brien, ISPMD Consensus on the Management of Premenstrual
Disorders, 16(4) Arch. Women’s Ment. Health 279–291 (2013).
71
Candy Pahl-Smith, Premenstrual Syndrome as a Criminal Defense: The Need for a Medico-Legal
Understanding 15(2) N. C. L. Rev. 246–273 (1985).
72
R. Norris and C. Sullivan, Premenstrual Syndrome 271 (1983).
14 Journal of Victimology and Victim Justice

syndrome as a defence has and will come before the judiciary.

It has often been contended that if this syndrome is legally recognized as a
separate form of defence then it might open a pandora’s box and it will be pleaded
as a defence by every woman for every criminal act. From the point of view of
feminist jurisprudence, it is pointed out that the biology of a female must not be
treated as an excuse for committing a criminal act. It has also been noted that
recognizing it as a defence will promote discrimination against women and will
be another aspect of male superiority.73 The nuances of a just legal system demand
that a bona fide claimant of this plea must be protected by the system. To reduce
the fears against this, the system must ensure that any plea claiming this defence
must be substantiated with sufficient evidences. The best possible bargain for a
claimant of this plea appears to be diminished responsibility.74
The defence of diminished responsibility will allow the accused to present
evidences that her mental condition was not normal even if the evidences were
insufficient to claim the defence of insanity. If the plea for the defence of insanity
is successful in a court of law then the accused is completely exonerated from her
act and is sent for medical treatment, however, a successful plea for diminished
responsibility will not completely exonerate the accused from the crime rather she
will be held guilty for a lesser offence.75
If the premenstrual syndrome is to be treated as an evidence for claiming
diminished responsibility then the accused need to show that she did not possess
the requisite intention to commit that crime. Moreover, she lacked self-control or
willpower to prevent herself from committing the act. To raise this plea a forensic
expert as well as an experienced medical professional is required. A causal
connection between premenstrual syndrome and the criminal act must be shown.
A heavy burden of proof is placed on the accused and collecting the evidence to
prove this fact is a difficult task as there exist several legal issues. A successful
plea for diminished responsibility will not have the effect of complete exoneration
of the accused rather, the accused will reduce the harshness of the conviction
howbeit, one cannot deny that the accused will still be treated as a criminal as
some punishment will be imposed upon her.
Another plausible solution appears to take the plea of automatism. Automatism
is defined as a state under which a person is capable of performing his/her acts,
however, such a person is unconscious or unaware of what he/she is doing.76 A
person who is undergoing automatism cannot be said to possess the requisite
mens rea for committing the criminal act.
It is the need of the hour to have a balancing approach towards the plea of
premenstrual syndrome. A compromise between the two views of not accepting
this plea completely on one hand and accepting the plea of premenstrual syndrome
completely for exonerating the accused completely on the other must be reached.

73
Wallach and Rubin, The Premenstrual Syndrome and Criminal Responsibility, 19 U.C.L.A. L. RaV.
209 (1971).
74
D.S. Janowsky et al., Premenstrual Increase in Psychiatric Hospital Admission Rates, 103 Am. J.
Obstet. Gynaecol. 189 (1969).
75
Pahl-Smith, Premenstrual Syndrome, supra note 71.
76
Id.
Gautam and Sharma 15

In such a situation premenstrual syndrome if proved must be considered as a

ground for either reduction of charges or as a mitigating factor for reducing the
punishment. Such an approach will not only protect society from criminals but
will also protect the women who have a bona fide claim from the stigma of
institutionalization. If the premenstrual syndrome is used as a mitigating factor
then it will give the opportunity to the courts to supervise the medical treatment of
the woman. Further, it will manifest the view that the sentence that is imposed is not
only to punish but also to treat the offender.77 Still, it cannot be denied that even
though these options will reduce the punishment of the accused but the woman who
is undergoing premenstrual syndrome will still be treated as a criminal.
The purpose of any criminal law is not only to deter the accused from committing
an offence but also to rehabilitate and treat the offender to ensure that he/she does
not repeat the offence. It makes no sense that a criminal justice system should take
revenge from a woman who has committed the criminal act while she is going
through a premenstrual syndrome. The rehabilitative goal of a criminal justice
system will be achieved if the woman is not isolated but given proper medical
care and treatment.

Conclusion
It has been widely accepted that many women experience not only physical but
also emotional changes before, during as well as immediately after their menstrual
cycle howbeit, there is exist no scientific evidences that these changes can always
lead to criminal behaviour in a woman. Despite this, it is also an accepted fact that
a severe form of the premenstrual syndrome also exists in a small number of
women hence, it is the ardent need of the hour to understand how our judicial
system can appreciate the evidences, which are placed in a case where premenstrual
syndrome plays a deciding factor in a criminal trial. The premenstrual syndrome
does not justify all the elements of the existing defence of insanity howbeit, in
several cases, it might be a factor, which can affect the mental abilities of a
woman. A general opinion appears to be that it must not be used on the basis of
frivolous reasons. A logical solution to this conundrum is proposed by several
researchers. A probable answer could be limiting the use of premenstrual syndrome
for either granting bail or for reducing the sentences.78 It is noted that premenstrual
syndrome can be used by courts in order to mitigate the sentence of the woman
because at this stage the courts have the power to ponder upon the vast amount of
evidences, which describes the background of an accused. The judges have
already decided whether the accused is guilty or innocent hence, at the stage of
sentencing a judge has the authority to determine an appropriate sentence for the
accused.79

77
L. Taylor and K. Dalton, Premenstrual Syndrome: A new Criminal Defence? 19 Cal. L. Rev. 269
(1983).
78
McSherry, Premenstrual Syndrome, supra note 2, at 139.
79
N. Mulligan, Premenstrual Syndrome 6 Harv. Women’s L. J. 219 (1983).
16 Journal of Victimology and Victim Justice

The courts in England have demonstrated through several cases such as R v.

Craddock,80 R v. Smith,81 R v. English82 and R. v. Reynolds83 that they are willing
to accept the plea of premenstrual syndrome as a mitigating factor for reducing
the charges to manslaughter. Similarly, the courts in the United States of America
are also accommodating the plea of premenstrual syndrome along-with the plea of
diminished responsibility. Canada also is an example of a legal system that is
coming forth to accept premenstrual syndrome as a mitigating factor for reducing
punishment. The courts in India are not far behind in incorporating several issues
that are specific to a woman offender and thereby reducing their punishment.
Even before Independence, the courts were sensitive towards women offenders.
An example of this can be seen through the case of Emperor v. Supadi Lukadu84
wherein the woman jumped in a well along-with her child on her back. She
survived but the child died. The woman was in an unhappy marriage and she was
further disturbed due to the illness of her child. She contended that when she
jumped into the well, she was unaware that the child was on her back. The court
reduced her conviction from section 302 of the Indian Penal Code, 1860 to section
304 Part II of the Indian Penal Code, 1860.
In the case of Phulabai Sadhu Shinde v. The State of Maharashtra,85 the accused
woman had four children with her husband. The youngest of them was aged one
and a half years and was suffering from rickets. The accused was also sick and
could not be cured despite treatment. One night the accused jumped into the well
along with her youngest child out of frustration. The child died but the accused
survived. The accused contended that she was not in the correct frame of mind as
well as was not aware of the consequences of her acts and pleaded the defence of
insanity. She contended that she was frustrated because of her illness as well as
the illness of her child and wanted to end their suffering. The accused was
convicted by the lower court, however, in spite of the fact that there was no prior
medical history of insanity the High Court gave the accused woman the defence
of insanity and acquitted her of all the charges.
In yet another case of compassion towards the needs of a woman was shown
by the Gujarat High Court in the case of Bai Ramilaben v. State of Gujarat86
wherein the accused woman killed her four children. On the date of the incident,
she behaved normally and prepared meals for everyone in the family and later that
afternoon she brutally killed all the children with an axe. After killing the children,
she did not try to escape rather when her husband asked her the reason behind her
act she kept quiet and did not respond at all. Later on, she contended that she was
not aware of her acts and pleaded the defence of insanity. She contended that she
was not keeping well after the birth of her youngest daughter, which was 8 months

80
525 F. Supp. 1342 D.D.C. 1981.
81
1981, 1 C.L. 49.
82
This decision came in the year 1981 and was delivered by Norwich crown Court. This was an
unreported decision.
83
(1988) Crim. L.R. 679 C.A. Crim. Div.
84
(1925) 27 BOMLR 604.
85
1976 Cr.L.J. 1519.
86
1991 Cr.L.J. 2219.
Gautam and Sharma 17

before the date of the incident but still she was held guilty by the lower court. The
prosecution contended that 3 months before the incident the accused was examined
by a doctor who certified that the accused was not mentally ill. Interestingly the
High Court noted that the accused had no motive to kill her children and it is
against the normal conduct of a mother to kill her children. The High Court
accepted the plea of defence of insanity and held her not guilty of the offence.
Similarly, in the case of Baijanti Bai v. State of M.P.87 the woman was accused
of killing her daughter by jumping in the well along with her. The woman
contended that she was suffering from acute pain in her stomach since the delivery
of the child and when she was coming back from the hospital, she became
unconscious due to the pain and fell in the well along-with her child. The doctor
suspected her to be an old case of Koch’s Abdomen _ C Pul Tuberculosis.
Considering the facts and circumstances of the case the hon’ble High Court
reduced her punishment under section 302 of the Indian Penal Code, 1860 to
section 304 Part II of the Indian Penal Code, 1860.
The above cases are a classic example of the situations where the judicial
system of our country came to the rescue of women who were a victim of the legal
system. In all these cases, the specific mental conditions of the woman played a
vigorous role for either acquittal or for reduction of charges and thereby mitigating
the punishment. A similar course of action can be taken in cases where a woman
commits crime unintentionally under the influence of premenstrual syndrome. It
is agreed that the burden of proof lies on the woman but in cases where she
manages to discharge the said burden the courts must take into account the factors
and reduce the punishment of the accused. It is agreed that the plea of premenstrual
syndrome cannot be accepted by the courts in each and every case, however, in
the cases in which it is apparent that the offence was committed under the influence
of this syndrome, the courts must take into consideration the facts and
circumstances of the case while deciding the punishment which is to be imposed
upon the accused woman. Keeping in mind the medical as well as the legal
developments of the present era, it might be too early to demand a special defence
for premenstrual syndrome however, it cannot be denied that the time is ripe for
the courts to accept premenstrual syndrome as a mitigating factor for reducing the
punishment at the time of sentencing of the women offender.
It is trite to state that law is organic in nature. It has been evolving since time
immemorial though at a snail’s pace that the changes are not apparent on the face
of it. However, it is essential that law keeps evolving. Only time will tell if
premenstrual syndrome will develop into a legal defence or not. However, it is
imperative that scholarly research is devoted to this. For long, law has been
written from men’s perspective where experiences of the women have not been
accounted for. Engendering the law is the need of the hour if we are to build an
equitable society.

87
2000 Cr.L.J. 3253.
18 Journal of Victimology and Victim Justice

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, author-
ship and/or publication of this article.

Funding
The authors received no financial support for the research, authorship and/or publication
of this article.