The body as excuse--biology, sex and crime: intersection of science, gender and law
University of British Columbia
Master of Laws - LLM
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.
Law, Peter A. Allard School of