It is trite that while the burden of proof for the prosecution to establish the guilt of accused is beyond reasonable doubt, the accused has to merely probabilize his defense by preponderance of probabilities. The Supreme Court in Bhikari v.
Some features of this site may not work without it. Inquiry into premenstrual syndrome PMS raises a cluster of questions involving scientific, moral, social and legal concerns. The following characteristics of PMS give rise to that cluster of questions: Although many vague definitions of PMS have appeared in earlier research studies, the majority now adhere fairly closely to the following definition which should also be adopted for forensic purposes: Despite a plethora of theories, the etiology of PMS has remained an enigma.
Nevertheless, it seems highly probable that PMS is related to the cyclical changes of ovarian hormones, although even this association has never been conclusively established.
The theory of a progesterone deficiency as key factor has been widely popularised, but there are as many studies showing no differences or higher progesterone levels as there are studies showing, low progesterone levels in association with the symptoms.
Of all the controversial aspects of PMS, treatment poses the greatest uncertainty. The main contribution to this confusion is the vast number of reports which fail to include placebo therapy controls. Treatments involving medications have ranged from psychotropic drugs to vitamins to diuretics.
Endocrine manipulation has been attempted with inter alia estrogen, progesterone, oral contraceptives and removal of the ovaries. Non-medical and self-help therapies, such as psychotherapy and stress management have also been used exclusively or in combination with medical therapies.
Since at least the turn of the century, there have been reports indicating that women have an increased tendency toward criminal behaviour during certain phases of the menstrual cycle, and in particular during the premenstrual or luteal phase.
These reports have served as the basis for a proposal to expand the existing defences against criminal liability to also recognise the potential impact of PMS. In the 's, the criminal courts of England have tentatively recognised PMS as a relevant factor in the determination of criminal liability.
In three known cases the syndrome led to diminished responsibility in terms of section 2 of the Homicide Act of The respective defendants thereby escaped murder convictions and were subsequently convicted of manslaughter.
Also of significance is the fact that none of the defendants received custodial sentences: The English cases may indicate a trend toward recognition of PMS in criminal cases. South African courts must decide how to respond. Two alternatives seem realistic.
Firstly, the courts could recognise PMS as a complete defence. Secondly, South African courts could follow the developing English practice and only accept PMS as a mitigating factor in sentencing. From a purely scientific point of view, South African courts should, in view of the elementological approach to crime, accept PMS as a possible exculpating factor.
This is not to suggest that PMS should be a defence sui generis. If PMS is to be recognised as a factor impacting on criminal liability, it should fit within preexisting legal principles. A potential abuse of a PMS-based defence could be prevented by requiring a strict gnostic procedure, compulsory expert testimony on the potential effects of the syndrome, and finally by placing the burden of proof on the accused.
From a political perspective the approach to accept PMS as a complete defence would, however, be unwise and inappropriate until society establishes sufficient means to treat PMS-sufferers and ensures public protection against repeat of PMS-induced or influenced crimes.
Directly related to the question of legal culpability, are the issues raised by criminologists: It is submitted that the penal sanction against a convicted PMS-sufferer should not lose its retributive nature.
However, cognizance should be taken of the special circumstances of a PMS-sufferer, namely, that she suffers from the debilitating and distressing symptoms of the syndrome for a maximum of eight days during the month only. In this respect the English trend of non-custodial sentences is commendable so long as the protection of the public is not neglected.
However, no hard and fast rules should be laid down in the imposition of punishment of a PMS-sufferer. Sentencing should be individualised. The attorney should be sympathetic to the needs of a PMS suffering client in inter alia the setting of trial dates.Relevant extract of the essay titled 'Exploring Premenstrual Syndrome in Criminal Law' published on in UK Essays, a trading name of All Answers Ltd., would be worth quoting: .
pects of criminal as well as civil law.4 For instance, the PMS defense, already used in criminal trials in England 5 and the United States, 6 will have a more solid foundation now that the APA classifies PMDD as a. Premenstrual syndrome may be effective as an affirmative defense to a criminal charge if the defendant can show that (i) she was suffering from premenstrual syndrome at the time the crime was committed; and (ii) because of her condition, either that the criminal act was an involuntary act 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.
In , two British women escaped murder convictions by arguing that their legal responsibility was diminished by premenstrual syndrome (PMS). In a fit of rage Sandie Craddock, an East London barmaid with 45 prior convictions, stabbed a fellow barmaid three times through the heart (Regina v.
Recently, there has been a number of criminal cases where Premenstrual Syndrome (PMS) has been recognized as a mitigating factor in the commission of crime. Premenstrual Syndrome (PMS) has played a part in the malady of a women’s life for many years. The development of Biological Theories has made law enforcement, attorneys, and even society study the connection biology has with individuals, particularly women for this manuscript, who commit crime.