THE BODY AS EXCUSE BIOLOGY, SEX AND CRIME: INTERSECTION OF SCIENCE, GENDER AND LAW by ANNE ELIZABETH BEVERIDGE B.Sc., The University of Glasgow, 1961 LL.B., The University of British Columbia, 1983 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAW in THE FACULTY OF GRADUATE STUDIES Faculty of Law We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA April 1994 Anne Elizabeth Beveridge, 1994 _________________ __________________ In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada Date / 9 DE-6 (2/88) — 11 — ABSTRACT 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 gender- based 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. - in - 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. - iv - TABLE OF CONTENTS Abstract ii Table of Contents iv Acknowledgement viii CHAPTER INTRODUCTION 1 2. MYTHS AND STEREOTYPES - TRAITS AND BEHAVIOURS AS DISEASE 17 I. Introduction - The Power of Gender-Based Myths and Stereotypes 17 II. Women 22 A. Mythic Definitions and Descriptions of “Normal” Woman 22 B. Myths Associated With Women’s Reproductive Functions 24 C. Myths Associated With “Abnormal” “Diseased” Women 26 D. Negative Effects on Women of Sexual Stereotyping 30 III. Men 38 A. Mythic Definitions and Descriptions of “Real” Men 38 B. Myths Associated With “Abnormal” “Diseased” Men 50 (i) Impotence 50 (ii) Chromosomal Abnormalities 55 (iii) Sexual Deviance - Child Sexual Abuse 55 IV. Myths and Stereotypes Surrounding Epilepsy 59 V. Conclusion 72 -v 3. LANGUAGE, SCIENCE AND GENDER BIAS - THE PROCESS OF MEDICALIZATION OF DEVIANCE 75 The Absence of a Female Voice in Medical Science 77 A. The Historical Development and Entrenchment of Male-Dominated Medicine - The Role of Women in Science and Medicine 77 B. Language, Science and Gender Bias 94 II. Medicalization and Criminal Deviance 112 A. The Process of Medicalization 114 B. The Meaning of Deviance 120 C. Medicalization as a Tool for Social Control 126 III. Summary 133 4. THE MEDICALIZATION OF GENDER DIFFERENCES 136 Medicalization of Women by Defining Physical and Mental Signs as Disease 137 A. Nineteenth Century Medicalization of Women - Before the Age of Hormones 144) (i) Menstrual Problems 145 (ii) Postpartum Disorders 157 (iii) Menopause 162 (iv) Summary 168 B Modern Medicalization - Defining and Treating Women’s Problems 169 (i) Premenstrual Syndrome(s) 174 (ii) Postpartum Disorders 194 (iii) Menopause 205 C. Conclusion 212 II. Medicalization of Men 215 A. Impotence 223 B. XYY Chromosomes 236 C. Pedophilia 244 D. Summary and Conclusions 257 - vi - III. Epilepsy 260 IV. Diabetes 274 V. Conclusion 277 5. BIOLOGY, SEX AND CRIME: INTERSECTION OF SCIENCE, GENDER AND LAW 285 I. Introduction 285 II. Theories About Women, Men and Crime 287 A. Evolution of Theories About Women, Crime and Violence 287 B. Female “Disorders” and Crime 301 (i) Premenstrual Syndrome(s) 301 (ii) Postpartum Offences 306 (iii) Menopausal Offences 316 C Theories About Men, Aggression, Violence and Crime 320 D. Theories About Epilepsy and Violence 327 E. Summary 333 III Applied Science Talks to Applied Law - The Role of the Expert Witness 334 IV. Criminal Defences - The Body As Excuse 345 6. THE APPLICATION OF BIOLOGICAL DEFENCES - MYTH AND REALITY 355 I Gender-Based Defences - Inquiring about “what is” and “what should be” 355 A. Female “Disorders” in the Courts 357 (i) Infanticide and Related Cases 357 (ii) PMS Defences - The Real and Imaginary 395 Violent offences attributed to PMS 397 PMS “Defences” for lesser crimes 405 PMS as a sword and shield 411 Critiques of PMS “defences” - Opinions of women 418 PMS “Defences” - A summary 427 Conclusion 428 - vii - (iii) Menopausal Defences 434 B. Male “Disorders” in the Courts 434 (i) Impotence 436 (ii) XYY Syndrome 448 (iii) Biological Defences for Pedophile Offenders 452 II. Defences Based on Epilepsy and Diabetes 464 A. Epilepsy 464 B. Diabetes 474 C. Conclusion 479 7. BIOLOGICAL DEFENCES - FROM THE THEORETICAL TO THE CONCRETE 485 I I. Case Studies 485 II. Conclusion 497 BIBLIOGRAPHY 504 SUPPLEMENTARY BIBLIOGRAPHY 532 APPENDIX - Table of Cases 537 - viii - ACKNOWLEDGEMENT I would like to thank all those who have given me help and encouragement while I was writing this thesis; in particular faculty and support staff of the U.B.C. Law School including: Marlee Kline who introduced me to feminist legal theory; Marilyn MacCrimnion who allowed me to change my thesis topic in mid stream and who listened and gave me unfailing support during my research; Isabel Grant who was particularly helpful with those sections that deal with mental disorder; Gilian Cartmell who rescued me from missed deadlines, incorrect formats and a variety of other errors; and, especially, Christine Boyle, my thesis supervisor, who helped me focus my thoughts, made valuable suggestions, found me space in which to work, and waited patiently for me to decide when to stop writing. I would also like to thank Professor Edward McGirr, Dean Emeritus of Medicine at the University of Glasgow, who introduced me to the fascinating world of endocrinology and nuclear medicine. Finally, to my long suffering family who listened to my developing ideas with varying reactions of incredulity, scepticism, humour, but always support and a sense of discovery - thanks once again. —1— CHAPTER 1- INTRODUCTION “[T]o inquire about what may be, is the best way to inquire about what is.” Imagine the following scenarios: 1. Maxine (30) has been arrested at the scene for the stabbing death of her live-in boyfriend. Two days later, while in custody, she starts to menstruate. 2. Gina (26) is under police guard in hospital after deliberately driving over a cliff. Her one-month-old daughter, her 18-month-old son and her husband have died in the crash. 3. Cheryl (15), whose parents are members of a strict fundamentalist sect, is undergoing psychiatric examination after delivering her baby in the bathroom and allowing him to drown in the toilet. 4. Haruko (49), a well-off married woman who does not work outside the home, has been charged with shoplifting after being caught leaving a store with a $10 scarf. 5. Stavros (35) is in custody after strangling a woman he picked up in a bar. He says he “blacked out” in a fit of rage when she taunted him about his impotence. 6. Mike (22) is under arrest after a brutal sexual assault on an eight year old boy. Scientific tests reveal that he carries the XYY chromosome and, two days after the crime, he had abnormally high testosterone levels. 7. Marie (37) has been charged with criminal negligence after severely injuring a pedestrian by driving over him. She says she remembers nothing about the incident because she had an epileptic seizure. 8. Kurt (28) is being questioned about his fatal stabbing of a co-worker. Like Marie, he says he can remember nothing because he was suffering from the effects of an excess of insulin that he has to take to control diabetes. What should a prosecutor charge these people with and how should counsel defend them? Should either counsel rely on sex differences when making their decisions? I have deliberately minimized the facts at this stage in order to draw attention to this question of 1 Stanley Cohen, “The Critical Discourse on “Social Control”: Notes on the Concept as a Hammer” (1989) 17 International Journal of Sociology of Law 347 at 356.