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Friday, March 09, 2007

"Although it is unclear whether women generally suffer a higher incidence of criminality during their generative phases, it is clear that the law takes account of these elements in deciding some cases. Menstruation has been used as a partial defence plea, and both menstruation and menopause have been accepted as factors which should reduce sentences (see also 7.1.1). Here the case of menstruation will be considered, but similar factors apply to menopause. Although both these ‘generative phases’ have been commonly used in such relatively minor cases as shoplifting, more serious cases will be considered here. Susan Edwards (1988) notes that in the nineteenth century pre-menstrual tension (PMT) was frequently discussed as being an important element of a defence in cases of violence, killing, arson and theft. Both she and Luckhaus (1985) refer to cases in the early eighties where PMT was successfully pleaded. In one of these, the woman faced a murder charge which was reduced to manslaughter due to diminished responsibility attributed to PMT, and had received a probationary sentence with a proviso that she undergo hormone treatment (R v Craddock [1981] CLY 476). Only a few months after the first offence, the same woman was charged with threatening to kill a police officer and of possessing an offensive weapon. Although convicted, PMT acted as a factor to reduce sentence and she was again placed on probation and required to undergo an increased hormone dose (R v Smith [1982] Grim LR 531; Craddock and Smith are the same person). In another case a woman, charged with murder, was convicted only of manslaughter due to diminished responsibility; there was no custodial sentence, not even the requirement of hormonal treatment (Christine English. The Times, 12 November 1981 and see also Rose (2000)). Clearly, in thc cases of these women the law accepted that PMT, although not amounting to a full defence, was the most important reason for the behaviour. PMT was accepted as a partial excuse and as a reason for lenient sentencing; the total effect was the acceptance of the controversial idea that PMT amounted to a causative explanation. This is an interesting acceptance in the light of the fact that medical evidence is divided about the existence of such a syndrome and its effects. If there are effects, they appear to be mainly psychological, such tension, irritability, depression, tiredness, mood swings and feelings of loneliness, although Dalton (1984) has included some relevant physical effects such as epilepsy, fainting and even hypoglycaemia (see 7.2.2 and 7.3.2). Rose (2000) would wish to see women receiving treatment at an early stage to avoid both the later criminal behaviour and the need to admit this type evidence in court.

In the case of post-natal depression there is, of course, the special case of infanticide (see generally 7.1.1 and 9.2.4 for a definition of this defence). Again, in this instance the law accepts as a partial excuse the fact that a woman’s mind and behaviour are affected by the hormonal changes in her body. If a mother kills her child within its first year as a result of post-natal depression or lactation, she would have a partial defence to murder which would render it infanticide. This is clearly only a defence open to women, and is the only sex-specific defence recognised in the criminal law. Some of these killings may possibly be the result of exhaustion through caring for the child, guilt through not feeling affection for it, or the effect of other social pressures, all of which could equally well be suffered by a man if he was the person primarily in charge of the care of the child (for a full discussion of this see Wilczynski and Morris (1993)). The Law Commission’s Draft Criminal Code suggested (clause 64(1)) that these social reasons for infanticide be recognised but only in the case of women (see Mackay (1993)). But a man cannot rely upon the same defence and would have to argue that his mind was unbalanced in some other way in order to plead diminished responsibility.

Certainly when one looks at the figures there appears to be an unfairness, Marks and Kumar (1993) show that the rates of killing of children under one have remained constant since 1957 at about 45 per million per year. This is higher than for any other age group and represents about 30 killings a year. They further discovered that women who kill such children are dealt with much more leniently (most are subject to probation) than are men (who are frequently imprisoned), even when the level of violence used by the women is greater. The leniency could arise because the charge of infanticide is available for women. Dell (1984), has shown that in cases of manslaughter the sentencing has been steadily becoming more and more severe, but Maier-Katkin and Ogle (1993), suggest that even when women are convicted of manslaughter they are treated leniently (often with probation) which suggests that it is not so much to do with a special defence being available but is connected with greater compassion for these women. Whatever the reason the men suffer much more serious sentencing for relatively similar cases. It is questionable whether such imbalance is just. The solution should not be to remove the defence of infanticide which recognises the severe pressures of new motherhood and reduces the stigma and the punishment. Perhaps there is scope for extending this defence: in the case of women to include ‘circumstances consequent on the birth’ as suggested by the Law Commission in the draft Criminal Code Bill; and in the case of men for severe stress caused by the birth and care of a child. In some of the most severe cases there may even be worth in pleading insanity and obtaining a finding of not guilty by reason of insanity, see Maier-Katkin (1991).

As was seen in Chapter Seven the hormonal imbalances suffered by men do not normally affect either their conviction or their sentence. Women, however, can successfully plead such imbalances even in the most serious cases where they take the life of another person (see also (9.2.4)). For the individual women involved, this is probably an advantage as they will either elude an unpleasant label or an unpleasant sentence, or both. For women in general, its effects are not so positive. It allows the continuation of the idea that women are incapable of controlling themselves and that their actions can be explained through medical reasoning they are mentally or physically sick, or both (see Wilczynski and Morris (1993)). Widely used, the implication of this reasoning would be that women should be treated for this 'sickness' rather than punished. It removes from women the idea that they may choose the criminality, that it might be a rational decision arising out of a social, economic or political situation."

--- Katherine S. Williams, Textbook on Criminology, Positivist Explanations of Female Criminality: 'Generative phases' of women
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