May 1, 2018

INSANITY- IN THE CONTEXT OF SEXUAL HARASSMENT : ARTICLE

By Indian Legal Solution Legal Articles 1 Comment

INTRODUCTION

Men wanders many times what makes the women more intuitive about their actions, haste, lies and labels? Well, no one is spying on them but, women got an uncanny ability that provides the sense of perception and then they react accordingly. Crossing the line of decency against any woman or child is an act which is not acceptable. The touch and words against them is also a bad action. Any comment, any touch will be judged by woman through their perception. In 21st century both men and women contributes in almost every sphere of society. There are some acts which show that men are trying to put their dominance over women whether at workplace, public places or at home. A woman’s prestige is most ponderous for her; nobody has the right to encroach one’s prestige or self-respect, not even any insane.
Sexual harassment of women means to make unwelcome sexual gestures, passing weird comments, touching, grabbing, leering, staring, and displaying inappropriate materials, asking for sex favours, obscene phone calls etc. as per IPC,1860. The question here is what if the accused is immature or insane? In a judgement rendered by California court of appeals gave tremendous answer to this question that 2nd district in the case of Julie Fisher v. San Pedro Peninsula Hospital, one judge took exception that “it is egregious hostile conduct which should not be condoned or excused to immaturity.

INSANITY- LIBERAL MEANING

A famous theoretical physicist Albert Einstein described “insanity as doing the same thing over and over again and expecting different results.” Insanity in general meaning can be considered as poor health of mind. Insanity, craziness, madness or distracted person is a spectrum of behaviour characterized by certain abnormal mental and behavioural patterns. Insanity may manifest as violation of societal norms including a person who can become dangerous to themselves and the society though, all such acts not be considered as insanity due to likewise, all the acts showing indifference of societal norms are acts of insanity. In modern usage insanity in scientific terms denotes mental instability. In the medical profession the term is now considered in specific psychiatric diseases. It is an ability of a person in which one cannot distinguish right from wrong but the other side of the coin shows that an insane person is more genius and complex who can think something beyond the mental capability of a normal person. Insanity is something in which a person does same things again and again but each time they expect different result. A child could be called as insane because he will keep pushing the wall in hope that it will probably move.

INSANITY- A GENERAL DEFENCE

Insanity in law is a defence which protects an accused person from punishment which emerged since 12th century. We can understand insanity better by comparing it with mental illness. Mental illness is something which is rigid mental disorder whereas insanity is a kind of cultural concept. In US Court of law insanity and mental illness are somehow related but they are not exactly synonyms. Legal insane person may fall under three conditions:

1) Unknown of the fact that what they are doing is illegal.
2) They do not what they are actually doing.
3) Compelled to do that by other person.

Mental illness is a state in which a person is unable to know the consequences of the act they are doing and not knowing the reality is the central idea of this defence which means that the intent to do that crime is not there. This is very difficult for the jury to decide whether the accused is legally insane or not. To decide this dilemma jury have to have order a testimony in which experts’ checks the mental state of the person so that justice could be done. After examining testimony the jury has to give the reason to move the mental ability of the person in that state in which he was not able to understand the consequences of the act. The jury after receiving expert’s testimony decides that the defendant did not intend to commit that crime due to insanity. It is very difficult for law to decide whether a person is insane or not because it is a wide concept and obviously have flaws within it. A criminal who has committed the crime but some error was done by the legal system while deciding the guilt and he was not punished, this is wrong to the society because a criminal has been wrongly
protected behind the curtains of defence of insanity. Countries like USA and other northwestern countries do not give much weightage to this defence because of flaws in insanity concept. It is very much important to know that at the time of the commission of the crime the person was not sane to decide his guilt. Psychology says that there are very less mental disorders in which a person cannot control himself while doing an illegal act which means that legal system must be cautious while providing the benefit of this defence to the defendant.
In Indian Penal Code section 84 deals with this insanity which says that when any person at the time of the commission of the crime did not know the nature of the act and also was not capable of know the consequences of the act which may either be wrong or contrary to law or illegal will not be punished. To enjoy the benefit of section 84 of I.P.C. one has to legal insanity and not medical insanity.

“At the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it that he did not know what he was doing was wrong”.
This defence always forms controversy among other defences because it is not defined in I.P.C. what exactly insanity which in itself is difficult to define. Court needs assistance of medical experts while dealing with cases of insanity because it is very difficult to decide that at the time of the commission of the crime defendant was not able to distinguish right from wrong. Law looks for intention of the person while doing an act because act of insane person under the influence of other person do not prove his guilt. All the mental disorders do not fall under this defence only the mental state which affected the act of the person while committing the crime will be considered.

INSANE- EVIL OR ILL

While deciding the case in which defendant is an insane person jury faces moral responsibility because it is morally wrong to punish an insane person. According to William (1983) “it is sympathy towards the defendant which makes the jurors Diminished Responsibility verdict”. In that case jury had decided on moral grounds not on legal grounds.
To make a fair decision the jury have to have convinced itself that it is not only morality which is to be considered but much more than that. Jury has initial perception in its mind that the person is good which affects the rational thinking of the Court which leads to error in judgement. Legal system needs to inspect it from both the ways because an insane person might be ill but the other side of the coin reflects that he might be evil also. This defence totally depends upon the suggestion of the medical experts because it is the matter of mental illness which brings law and medical science together. An insane person who has been charged of the offence of sexual harassment is evil to the society and the acts of sexual harassment affect the mental health of women which is not right to be dealt under defence of insanity. as we all know medical science is developing day by day which is emerging new
mental disorders daily that results into weakening of law while dealing with insanity.

INSANITY UNDER VULNERABLE GROUP

According to Robert E. Goodin “Some vulnerabilities are natural, inevitable, and immutable. Others are created, shaped, or sustained by current social arrangements. While we should always strive to protect the vulnerable, we should also strive to reduce the latter sort of vulnerabilities insofar as they render the vulnerable liable to exploitation.” Vulnerable group is protected by law because they are more exploited or a group which is at higher risk. Children, women, senior citizens, an insane person comes within the ambit of vulnerable group. Insanity is also a category which falls under vulnerability because they are more at risk in period of conflict and crisis. Insanity or mental disorder falls under this group because an insane person is not reasonably sound which makes him to take unreasonable decisions. There are various groups which are working for protection of vulnerable group ICESCR is a vehicle for this group. They are unaware of their Constitutional and Human Rights due to their mental incapability. People with mental illness face many severe Human Rights violations. Women with mental disorders are victims of both mental and physical harassment either at home or institution.
The Constitution of India protects people with disabilities from mental and physical harassment under Article 253 read with item 13 of the Union List has enacted “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995”. It is an obligation upon the Government to protect women against violence which is serious enough to seek hospital assistance or treatment. If government fails to perform its duty to treat victims and it constitutes violation of Human Rights. Sexual harassment caused to an insane woman may results into transfer of some diseases which may cause serious health issues.

INSANE AS A VICTIM AND AS ACCUSED

There are two scenarios in which an insane person is either victim or an accused. As discussed above an insane person as victim will be dealt by law with the help of laws which protects vulnerable group from exploitation. Harassment caused to a woman of insane mind will face difficulties when question comes for justice. Law has kept this perspective in mind and has formulated special protection to the vulnerable group at national level as well as international level. But, this seems easy in books of law not in reality because an insane woman is unable to describe the actual happening at the time of the crime and generally a sound person ignores statement of an insane. In this case the jury faces difficult and they might be giving wrong decision of that case in which an insane person is victim, this is actually the scenario. There are many laws which are only for the welfare of vulnerable group but in practical these laws are not working efficiently. A women to whom harassment is caused do not know what accused is doing and what will be the consequences on health because of their unfit mental condition.
Sexual violence against women with reference to rape is another aspect of sexual abuse. Rape which is dealt under section 375 of IPC which is not perfect explanation of rape and this is very much difficult to draw out appropriate definition of rape. Rape is the most heinous crime against women. It becomes more heinous when committed with an insane woman is not able to defend herself because of her incapable mental state. On the other hand when accused of sexual harassment is an insane person then, he will most probably enjoy the defence of section 84 that is “Insanity” which means that after receiving the expert’s certificate which states that the accused is an insane, Court will decide to acquit him and he will be free. There are many flaws when it comes to the defence of insanity
pleaded by defendant in the Court of justice because there are no specified boundaries of the application of this defence which promotes misuse of the defence. Another reason behind misuse of this defence is development of medical science which comes up with new mental diseases which results into widening of the scope of insanity. Mental scar will remain forever and it will leave more negative effect on an insane women.

CONCLUSION

Every human being deserves a life with dignity and no one has the right to encroach and violate right of other. A woman’s dignity lies in her prestige and if a man tries to destroy her prestige by harassing sexually or rape is heinous act according to law. Moreover, sexual harassment on a woman by an insane man is different scenario because there will be attraction of section 84 of IPC. Every insane person cannot be termed as mentally ill up to that stage in which he don’t know about his acts. If an insane has sexually harassed any woman and he knows how to detain her so that nobody could hear her voice, then he will not get benefit of this defence for this act. He has the knowledge of detaining and he knows that he will be caught if anybody would hear her voice so he will try to be safe. In this case he isliable for the punishment prescribed for sexual harassment on women in IPC and it will be unjustified acquittal if acquitted on the ground of his insanity. I conclude that sexual harassment by an insane person must not be pardoned on the basis of his insanity and must be punished equal to accused of sane mind.

By: Diksha Mahla, Raffles University