The trooper stopped the swerving BMW on Thanksgiving night and noticed a strong odor of alcohol on the breath of the woman who was driving her children home from a dinner party. When the trooper asked the driver how much she had to drink, the driver identified herself as "a doctor" and told the trooper that it was none of his "damn business."
The trooper then asked her to place her hands on top of her head, but instead she tried to kick him in the groin. According to the trooper, she then began to yell: "You son of a [expletive]; you [expletive] can't do this to me; I'm a doctor. I hope you [expletive] get shot and come into my hospital so I can refuse to treat you, or if any other trooper gets shot, I will also refuse to treat them."
After being arrested, the doctor was asked to take a Breathalyzer test, whereupon she kicked the machine. When she finally agreed to take the test, she failed it. She was then charged with drunken driving.
The doctor's defense was that she was afflicted with premenstrual syndrome (PMS). Her lawyer argued that women absorb alcohol more quickly during their premenstrual cycle and that women with PMS became more irritable and hostile than other people.
The Virginia judge apparently agreed with this argument and acquitted the woman. It is the first known instance of a PMS acquittal in this country and may serve as a precedent for future cases. The doctor and her lawyer were ecstatic over their victory
Lest anyone believe that this acquittal was a victory for women, for feminism, or for those women who are affected with PMS, just consider the implications of excusing women with PMS from criminal responsibility.
This woman is an orthopedic surgeon, who presumably performs delicate surgery all through the month. Does she now have to notify each of her patients that her PMS may make her irresponsible during several days each month! Will she abuse nurses and kick the medical machinery in the midst of a surgical procedure? Should there be special rules limiting the amount of alcohol women with PMS are allowed to drink during the premenstrual part of their cycle? Must women with PMS display a surgeon general's warning during this time alerting all persons who came in contact with them that their PMS may cause irritability, hostility, or drunkenness? May employers now refuse to hire women with PMS for certain jobs? May they require all women to submit to medical tests designed to uncover latent or hidden PMS?
Any defense of criminal irresponsibility is--as Dostoyevsky once put it--"a knife that cuts both ways." It may excuse in one case, but it causes suspicion and prejudice in other cases. For example, when we excuse the mentally ill from responsibility for their criminal actions, we stigmatize all mentally ill people as irresponsible and incapable of controlling themselves. Nor is suspicion and prejudice against women who suffer from PMS warranted by the empirical data. Though some women who are irritable and hostile during the premenstrual period of their cycle may well suffer from PMS, the vast majority of women who suffer from PMS do not behave the outrageous way the surgeon in this case did. Her PMS did not cause her unlawful and rude behavior. Her actions were caused by her entire background, personality, and circumstances. She is obviously an elitist and deprecating person during the entire month, or else she would not have said what she did to the trooper. PMS alone does not change Dr. Jekyll into Mr. Hyde. She admitted that she had several drinks before she drove that night, and surely her PMS is not responsible for that behavior.
We live in an age when everybody tries to blame someone or something for their failures. Several years ago there was the "Twinkie defense." And then there was the "TV made me do it" excuse. Now it's raging hormones. This well-educated doctor should have realized that during the premenstrual part of her cycle, she behaves differently, and she should have taken precautions against breaking the law. Surely her PMS did not come on suddenly without previous manifestations. Her acquittal sends a doubly dangerous message. First, that our hormones are beyond our control and that we are not responsible for how they manifest themselves. And second, that women with premenstrual problems are somehow less reliable and less predictable than other people. Neither is true.
The PMS defense is a setback for feminism, especially when used in a case like the surgeon's. She ought to take responsibility for her own actions. And if her hormones are indeed beyond her control, her patients should be made aware of that dangerous reality. She can't have it both ways.
Dershowitz, Alan M. 1994. "The PMS Defense Feminist Setback." In The Abuse Excuse: And Other Cop-outs, Sob Stories and Evasions of Responsibility. Boston: Little Brown.