[Divya Kumar is a third-year law student at National Law University, Jodhpur]
“Human behaviour flows from three main sources: desire, emotion and knowledge” – Plato
Human beings are distinct from all other species of life due to the distinct features of emotion and reason they possess. A Chinese proverb states, “control your emotions or they will control you,” and it is something we are taught as children; yet, the same cannot be held to always hold true when it comes to everyday life. Passion crimes refer to those actions wherein a person’s actions are compelled by the force of her/his emotions. In such a situation, a person does not usually realize what s/he is doing, and consequently, cannot foresee or weigh the possible consequences or their correctness on the scales of morality or lawfulness.
Male and female psychology, guiding their respective actions, is different and can be understood by the way the male and female brains are designed and function. For example, the content of the cerebral matter and its usage varies between the two sexes and this makes men better-focused workers while women are better multitaskers. Hormonally, certain chemicals like testosterone, estrogen, serotonin and oxytocin’s composition vary causing men to be physically more active and aggressive. Female brains also tend to have a larger and more complex hippocampus, which contributes to their relatively enhanced perception of sensory stimuli and sharper memory. It has been noted that female brains also have more verbal centres making women more expressive and descriptive.[1]
Factors such as the amount of time and investment, being 9 months as compared to a few seconds or minutes, required by women and men in the reproductive process also contribute to essential differences between the psyches of both sexes. Consequently, women have a greater attachment with their offspring. From the evolutionary perspective based studies, it has been found out that men are more likely to react in the heat of passion in cases of sexual infidelity, while women are triggered by emotional infidelity.[2] This is reasoned by the fact that it is the woman who carries a child, and so a man may develop insecurities with the child carrying his genes, while for a woman, the focus is simply on finding a loyal partner to support her for rearing her child.[3]
Now, dealing with passion crimes and bringing them under the ambit of grave and sudden provocation or as a form of insanity is not sufficient. It involves situations where an objective or ‘reasonable’ man’s assessment cannot be used to examine individual reactions on the touchstone of the previously outlined criteria. Per contra, given the dominant role the men have played, criminal and penal codes have been designed by them globally. Women, as has been the case, have usually been unheard and continue to remain so, thus contributing to the patriarchal and narrow outlook of laws.[4]
Further, the elements of the crime cannot be reduced to just actus reus and mens rea. Subjective situational and psychological factors such as women feeling emotions more intensely, not being very violent and aggressive, and connecting instances more quickly because of better memory, need to be considered before imposing liability. Studies suggest that women report suffering a greater deal of stress and maintain relationships better than men,[5] and also have a greater tolerance level for pain than men.[6] This could cause them to react in a sudden fit, on suffering over a period of time, curtailing the application of Section 300 of the Indian Penal Code,[7] because the offence does not fall under a (temporally) ‘sudden’ provocation. It also reflects that women would commit the crime upon the existence of certain special circumstances, different from men, who may be more prone to act at the spur of the moment. This also rebuts the presumption of mens rea in such crimes as the act is devoid of cognitive elements and is rather based on biologically and hormonally induced uncontrollable emotional compulsions. A further difference can be derived from hormonal reactions in women being quite different and more pronounced, given the number of physiological changes they experience in their lifetime affecting their emotional reactions more frequently and intensely.[8]
Passion crimes cannot also always be brought within the ambit of insanity[9] as they may not necessarily lack consciousness of the act. It is not the knowledge, but the elements of emotion and circumstances that fuel the commission of the act. Therefore, these crimes inherently being a product of emotion are required to be looked at differently, for men and women’s emotional reactions are different. This necessitates the law to recognize and appreciate an appropriate defence to a crime catering to the feminine perspective, which, inter alia includes the battered woman syndrome, the post-partum syndrome and the pre-menstrual stress syndrome.
The need for such recognition becomes known with the recent 2018 judgment of the Rajasthan High Court in the case of Kumari Chandra v. State of Rajasthan.[10] [Read here] Here, the Rajasthan High Court allowed the accused to plead the defence of insanity under Section 84 of the IPC once she was able to prove that she was suffering from severe pre-menstrual stress (PMS) syndrome, which used to turn her excessively aggressive, at the time of committing the murder of a child. This decision is only the first to recognize PMS as a defence under the plea of insanity in India. There exist very little jurisprudence and decisions in India which recognize a defence specific to women such as the battered women syndrome.[11] However, even in instances of such recognition, the same is indirect. The courts merely attempt to bring these women-specific conditions within the ambit of exceptions such as provocation, self-defence or insanity but do not as such recognize them as independent defences that can stand on an independent footing. Consequently, this indirect recognition necessitates the fulfilment of requirements of these defences rather than proving the condition that a woman is undergoing and how it influenced her actions (through medical evidence and expert testimony).
Thence, I argue that rather than attempting to accommodate actions within an exception, the law must endeavour to understand the psyche behind the commission of certain actions in cases where such subjective analysis may be required. The Rajasthan High Court’s judgment being a step forward in recognizing new and more women-centric defences; we need more decisions to understand these defences better and validate the growth of an ‘inclusive’ and progressive approach to our understanding of crime and punishment. It renews and brings to light the concern that the object of the law should not be accommodation of ‘second’ sex, but be to include the other ‘half’.
[1]Gregory L. Jantz, Brain Differences Between Genders, Feb 27, 2014, available at- https://www.psychologytoday.com/blog/hope-relationships/201402/brain-differences-between-genders.
[2]David M. Buss & David P. Schmitt, Sexual Strategies Theory: An Evolutionary Perspective on Human Mating,
100 Psychol. Rev. 204, 207 tbl.1 (1993).
[3]D. Barret Broussard, Principles for Passion Killing: An Evolutionary Solution to Manslaughter Mitigation, Emory Law Journal, Volume 62, Issue 1, available at-http://law.emory.edu/elj/content/volume-62/issue-1/comments/principles-for-passion-killing.html.
[4]Reece, Laura E, Women’s Defenses to Criminal Homicide and the Right to Effective Assistance of Counsel: The Need for Relocation of Difference, (1991), UCLA Women’s Law Journal, available at-http://escholarship.org/uc/item/45p503xn.
[5]American Psychological Association, Gender and Stress, available at-http://www.apa.org/news/press/releases/stress/2010/gender-stress.aspx.
[6]Alice Park, Men vs. Women on Pain: Who Hurts More?, Jan. 23, 2012, available at-http://healthland.time.com/2012/01/23/men-vs-women-on-pain-who-hurts-more/.
[7]Section 300, Indian Penal Code, 1860.
[8] Paul R Albert, Why is depression more prevalent in women, J. Psychiatry Neurosciences, Volume 40 (4), July, 2015, available at-https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4478054/; Women are far more anxious than men – here’s the science, June 10, 2016, 9.59pm AEST, available at-http://theconversation.com/women-are-far-more-anxious-than-men-heres-the-science-60458.
[9]Section 84, Indian Penal Code, 1860.
[10]Kumari Chandra v. State, D.B. Criminal Appeal No. 44/1987.
[11]Keerthana Medarametla, Battered Women: The gendered notion of defences available, available at- http://docs.manupatra.in/newsline/articles/Upload/F1D66902-8FAE-4580-BDB1-479D1768B695.pdf; Manju Lakra v. State of Assam, 2013 SCC OnLine Gau 207 : (2013) 6 Gau LR 222, 251; State v. Hari Prashad, 2016 SCC OnLine Del 751, 2.
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