| Summary: | Present Canadian legislation provides for only one gender-specific “defence” which
appears in the Criminal Code as the crime of infanticide. English law recognizes severe
Premenstrual Syndrome (PMS) as a mitigating factor in charges of murder. No common law
country has yet accepted PMS as a full defence. Feminists have criticized this type of genderbased
defence on the ground that (1) it relies on unsubstantiated theories of biological
determinism and perpetuates the negative stereotyping of all women; and (2) legal recognition
of conditions like PMS can be used as a sword against women.
This study tests the thesis that, unless law reformers deliberately take into account the
nature and tenacity of sexual mythology, gender-specific additions to criminal defences will
merely perpetuate gender bias and sexual inequality.
As preparation for legal analysis, a number of myths related to the female and male
human bodies and to disease are compared and contrasted. This study examines the notion of
woman as the victim of postpartum, premenstrual and menopausal “raging hormones” that force
her into behaviour that is characterized as either criminal or sick. It compares her with the
“ideal” man and with the man who deviates from this ideal for gender-specific reasons such as
sexual impotence, abnormal chromosomes or pedophilia. Epilepsy, a disease common to both
sexes, is used as a non-gender-specific comparison. The medicalization of gender-specific disorders in both men and women are examined,
taking into account the influence of “scientific” language formulated mainly by men. This is
compared with equivalent histories of epilepsy and diabetes.
Criminological theories based solely on either biological or environmental factors are
criticized, and the role of the “expert witness” is discussed. Cases that attempt to utilize
biological defences are analyzed and law reform proposed.
There is strong evidence for the existence of biological conditions in both sexes that
contribute to states of mind that should entitle the sufferer to legitimate defences. These should
be incorporated within general defences rather than separate categories. However, until genuine
disorders are separated from benign conditions experienced by most people, courts should
exercise caution in implementing such defences.
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