¶ … Crime Attenuant: How Lawyers Have Used P.M.S as a Criminal Defence for Women Premenstrual Syndrome (PMS), the unique, often troubling physical and psychological symptoms that can accompany onset of menstruation in many women each month, has been used successfully in the past, and continues now to be used by lawyers worldwide (e.g., in the United Kingdom, Canada, the United States, and elsewhere) in defence of women accused of crimes (Johnson, 1987; McArthur, 1989; Eastreal, 1991; Dershowitz, 1994). Specifically, PMS symptoms typically are "Symptoms that begin 7 to 14 days prior to a menstrual period and usually stop when menstruation begins (Griffith, 1995, p. 500). Actual physical and psychological PMS symptoms may include:

Nervousness and irritability; Dizziness and fainting; Emotional instability;

Increased or decreased sex drive; Headaches; Tender, swollen breasts;

Bloating, constipation, diarrhea, and other digestive disturbances; Fluid

retention that causes puffiness in the ankles, hands, and face; Higher

incidence of minor infections such as colds; Acne outbreaks; Decreased urination. (Premenstrual syndrome: PMS)

According to Easteal (1990) (as background to eventual use, in later decades of the 20th century and now, of PMS as a defence in criminal cases):

Nineteenth-century theoreticians, some ancient philosophers and cross-cultural menstrual taboos all supported a view of females as the victims of menstruation, and later, by the mid 1800s, more specifically their ovaries, and then in the 1920s, their hormones. It was not, however, until the early 1950s that the focus changed from menstruation to the menstrual cycle and the time period preceding the menses; the premenstrual era and its concomitant theories relating to deviant behaviour had arrived. Thus, PMS began to be used either as a defence or as a mitigating factor in a number of countries.

According to Dalton (1986) PMS symptoms typically differ, as to their intensity, not only among individual women (e.g., some women typically have none, or almost none, of the usual monthly PMS symptoms, while others may experience very severe ones) but also from one month to the next. Further, according to Dalton, women who suffer stress may also experience increased emotional symptoms of PMS (Premenstrual Syndrome). As Eastreal (1991) further notes, however, "only a small percentage of sufferers actually experience some of the more severe symptoms."

Further, Dalton (1986) [a U.K. physician who has testified, as an expert witness in support of various women using the PMS defence] (see Eastreal, 1991) describes the symptoms typically found, among women accused of crimes, who have use the PMS defence, as:

Depression . . . with ideas of right and wrong becoming confused . . .

[possibly leading to] shop-lifting, suicide, smashing windows or arson;

Irritability . . . with a complete loss of control . . . Psychosis induced by PMS

which usually lasts only for a day or two and can involve hallucinations, paranoia and total amnesia of behaviour (p.147).

Eastreal (1991) cites several court cases tried within the last few decades, in the United Kingdom (e.g., R v. Craddock (1980) and R. v. Smith (1981)), as well as in Canada and the United States, in which PMS as a criminal defence was successfully used in cases where women had been accused of crimes. According to Johnson (1987), in one case tried within in the United Kingdom, that of R. v. Smith (1981):

After a fight with her lover, a married man, English [who later took the surname Smith] drove her car at him ramming him into a lamp post. Charged with murder, English ultimately was put on probation with the restrictions of abstinence from alcohol and a year's driving ban, plus a directive to eat regular meals. Preceding the death, English had not eaten for nine hours . . .

this fact, coupled with the accused's [sic] severe PMS, resulted in a raised glucose tolerance leading to a blood sugar level drop and the over-production of adrenalin . . . physicians . . . testified...

The court . . . reduced the charge to manslaughter on the grounds of diminished responsibility due to PMS (p. 340).
More recently, in the American case, a woman "was acquitted of drunk [sic] driving charges when her lawyer argued that PMS had exacerbated the effects of the alcohol" (Eastreal, 1991). As both Eastreal and Dershowitzs (1994) suggest, however, the PMS courtroom defense does not typically sit well, with feminists and others, in the United States or elsewhere, who are increasingly concerned about the general risk of women's being degraded (i.e., as "out of control," as they have been in the past based on faulty perceptions of PMS) by possible broader, misplaced, implications of the PMS defence. Such concerns are because the general public, upon reading or hearing of such cases, often does not make its own distinctions between the more severe cases of PMS possibly leading to criminal acts and successful use of the PMS criminal defence, and far less severe, more typical levels of PMS found among most women who suffer from it at all (and many women do not suffer from PMS). For that reason, the American civil rights attorney Alan Dershowitz (in The PMS defense feminist setback, 1994) discourages use of the PMS defence in criminal trials:

We live in an age when everybody tries to blame someone or something for their failures. Several years ago there was the "Twinkie defense." And then there was the "TV made me do it" excuse. Now it's raging hormones. . .

acquittal sends a doubly dangerous message . . . our hormones are beyond our control and . . . we are not responsible . . . second, . . . women with premenstrual problems are . . . less reliable . . .Neither is true. The PMS

defense is a setback for feminism

The observations of Dershowitz and others, on the use of PMS as a criminal trial defence, raise two gnarly, tightly inter-related, potentially troubling issues. The first is: Should PMS continue to be used as a criminal defence for some women on trial? The second is, when and if such a defence is used, especially when it is used successfully, what negative stereotypes and potentially negative social repercussions might women then, by faulty, overly-generalised association, suffer from overall? As Eastreal observes, of the dilemmas raised by these issues:

Although they [those who would support continued existence and use of the PMS defence] do not want the small number of severe PMS sufferers to be dismissed as neurotic or charlatans, the primary concern is that people might generalise from the few and negatively stereotype all women or all those who experience premenstrual symptoms. Like all medical disorders, a whole class of people with similar maladies could be stigmatised.

Considering the fact that so many women have fought so long and hard worldwide, mostly in the latter decades of the 20th century, for rights and privileges that would be more equal to those typically enjoyed by men (e.g., education; jobs; financial independence, social respect) it would be, this author believes, unfortunate indeed, especially now, for the PMS defence, currently so infrequent and used for so relatively few, to now become so much more widespread as to invite use, especially by those who might be already more ill-disposed than others toward the fact of women's current, hard-won equalities, to endeavor to began chipping away at them.

As Eastreal further points out, moreover, along those same lines: Biological

deterministic theories of male superiority were recalled with the concern that

PMS as a defence would revive this perspective with its obvious implications.

This may well be part of the answer why the defence has never been raised in this country [Australia].

Moreover, as Gado (2005) reminds us: ". . . current research does not support a direct relationship between a women's menstrual period and female criminality. It is…