By Amreen Tapadar and Deeksha Sharma
As loathsome and obnoxious the concept of inflicting pain on non-consenting parties to derive sadistic pleasure appears to one, the actuality in cases of rape is the application of sexual sadism. Unfortunately, the justice system prevailing in our nation has opted for discounting the criminology behind rape and has stood high on being a victim-centric system.
Criminology takes into consideration the underlining circumstances behind any crime, like the unsoundness of mind, mental health etc.
The apex court in Navneet Kaur v. State held that unsoundness of mind, behind any crime is a supervening circumstance, and hence deserves to be taken into consideration. Otherwise, it would go against the scheme of Article 21 of the Indian Constitution. Though the (Diagnostic and Statistical Manual of Mental Disorders) DSM-V, unreasonably reaffirms that rape is a crime and not a mental disorder. However, this situation doesn’t hold true, as the Delhi High Court in Prem Bahadur v State, affirmed that rape in most of the cases, is crime of power and mental disorder and not of lust, which goes parallel with the core purpose of this article, identifying the complete transfusion of power, cognitive disability coupled with establishment of dominance over the victim as an apparent root for the act.
Unsoundness of mind finds its place in Section 84, Indian Penal Code (IPC), which legally the definition of ‘insanity’ through unsoundness of mind. Section 45, Indian Evidence Act (IEA), 1872, is used as an evidence to substantiate the ground of unsoundness, by using the opinion of experts in the field of psychiatry.
A study conducted by Indian Journal of Psychological Medicine, of the cases in the high Courts of India, where the insanity plea was raised, of the 102 cases analysed, it was found that psychiatric opinion, was not obtained for 26 cases (25.49%), despite the insanity plea being raised by the defendant, which is grossly unjust. Criminology though has a limited application to Indian jurisprudence, concentres analysis of such data and draws out measures for rehabilitation and in effect lessening the reoffending rates.
Currently, the defence of unsound mind for ousting/lessening penal liability is popularly made applicable in cases of Section 300, IPC, 1860. However, assessment of psychological enforcement of perpetrators in rape cases, positively establishes that such “perpetrators”, are often victims of various psychological and cognitive dysfunction, thus indicating unsoundness of mind.
Post 1860, Britain had an indigenous application of medico-legal science sponsored by penal and psychiatric establishments, and through this tradition the theoretical and professional space for “criminological science” was entrenched.
Through judicial pronouncements, section 84, IPC can be understood in three broad parameters:
- UNSOUNDNESS OF MIND-
Here, the law distinguishes between medical and legal insanity. Medical insanity is the person’s consciousness of the bearing of his acts on those affected by it. Legal insanity means the mental illness and incapacity of a person to a degree that the law will recognise. Only legal insanity is recognised as a valid defence in India.
It is to be understood that rape is de facto an exhibition of a “disease of the mind” as it is a complete depiction of sexual sadism, a condition of experiencing sexual arousal in response to extreme pain, suffering or humiliation of other non-consenting people, dominance and power over the victim. Sexual sadism greatly affects the neuro-cognitive circuitry of the brain and further hinders his ability to gain control over his natural impulses. 37%-75% of those prosecuted for sexually motivated homicide are mostly diagnosed with sexual sadism. Hence operating on a diminished mental capacity causes failure in administering the culpability of his actions. Such neural mechanism underlying this unusual response is unfortunately not well-understood in India.
In our opinion, there can be no legal insanity unless cognitive faculties of mind are affected by it. Or there can be no legal insanity without medical insanity. Hence, separating legal insanity from medical insanity is singly a major shortcoming of the Indian criminal justice system.
Sexual sadists not only derive pleasure over humans, but animals are also a victim of it. An 18 year old boy from Najafgarh, Delhi, was charged for committing bestiality on a baby cow. He was admitted in AIIMS, and was treated by a psychiatrist for his mental disorder. Such people are mostly diagnosed with sadism (Zoosadism), and are more likely to conduct in similar activities towards humans.
- UNSOUNDNESS OF MIND SHOULD EXIST AT THE TIME OF THE OFFENCE
For assessing the unsoundness of mind at the time of offence, the factual method is corroboration of facts and evidence of the case in hand.
- KNOWLEDGE OF THE NATURE OF ACT BY THE OFFENDER
How do we come to know if the offender knew the nature of the act he was doing? The courts have varied views on this. First, the famous judgement of the Queen’s Bench in R v. Byrne defined it by saying that the offender should be suffering from an “abnormality of mind” meaning thereby, a state of mind so different from that of ordinary human beings, that a reasonable man would term it abnormal. Sexual sadism, affecting the cognitive faculties of the brain is termed as abnormal.
Secondly, Sexual sadism makes the person lose control over his impulse. For instance, the court in Sodeman v The King recognizes that mental disease manifested in “uncontrollable impulse” may also be manifested in lack of knowledge, or incapacity to have knowledge, of the nature and quality of an act of its character as a wrong act. Sodeman v R, observed that the manifestation of an “uncontrollable impulse” may afford the strongest reason for supposing that (the accused) is incapable of forming a judgment (that his relevant acts) were wrong. In general, it may correctly be said that, if the disease or mental derangement so governs the faculties that it is impossible for the party accused to reason with some moderate degree of calmness in relation to the moral quality of what he is doing, he is prevented from knowing that what he is doing is wrong.
According to the Hon’ble Supreme Court of Canada in R v Bouchard-Lebrun, for the purposes of the Criminal Code, ‘disease of the mind’ is a legal concept with a medical dimension. Defence proves the medical condition caused “substantial impairment” of mental judgement during commission of the offence. This lowers the sensitivity of perceiving a wrong as a wrong as it disables the person to control his impulses.
It is worth noting that the Royal Commission on Capital Punishment in England 1949-1953, recommended that the defence of insanity should be available to one who was “incapable of preventing himself from committing the crime”.
Third, the court in Regina v Gold, further highlighted the meaning of “substantial” as indicating a serious degree of impairment of mental responsibility and that the impairment was a “significant contributory factor” for the offence. Sexual sadism is the sole contributor for the offender while committing rape, in many cases in India.
Hence the defence of diminished responsibility comes into play. In criminal law, diminished responsibility used in cases of Section 300, IPC which talks about murder, coupled with Section 105 of IEA, which talks about burden of proof on accused while asking for this defence. Hence, by reasons of impaired mental functions, the accused, though, convicted seeks partial defence post establishment of a detailed diagnosis examined by the psychiatric department and proof of mental illness.
Marshall and Barbaree proposed that a critical developmental task for people involves distinguishing between aggressive and sexual impulses, as this has consequences for their ability to control aggressive tendencies during sexual experiences and activities. Such individuals are more prone to commit crimes.
In our view, India needs a system that not only recognises this mental disability, but also, reduces the extent of their punishment, by focussing on the correctional measures.
This defence of diminished responsibility, though not expressly mentioned was applied in India in the judgment of Abdul Wahid v. State of Maharashtra, uncontrollable impulses by reasons of marital breakdown of a father who was convicted for raping his daughter.
In our opinion, McNaughten Rules somewhat codified in section 84, IPC are exculpatory, mental unevenness, neurotic upsets and psychic crises may be extenuatory and the sense of diminished responsibility may manifest itself in judicial clemency of commuted life incarceration. Reassessment of the elements section 84 talking about unsoundness of mind with inclusion of sexual sadism is paramount. Also, diminished responsibility should be statutorily recognised as an accessible defence in section 84, rather than putting it for accordance with the subjective opinion of the courts.
Furthermore, principles of Durham Rule, (defence for abnormality of mind), on grounds of excess inclination and dependency on psychiatric advisory was rejected by the US justice system. Section 45, IEA codifies opinion of experts as evidence; it doesn’t receive the due attention, though consideration of legal insanity evidently flows from the assessment of the psychiatrist. However, the Telangana High court in R.V.R.G Dharma v The State, referred the Durham Rule for coming to its judgment.
To finish, this article would like to draw emphasis on the fact that the concept of criminology goes well with the acclaimed philosophy of “every saint has a past, and every sinner has a future” as penned by Oscar Wilde.
[The co-authors are third year B.A. L.L.B. students at RMLNLU, Lucknow.]
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