WASHINGTON -- America's first successful criminal defense based on premenstrual syndrome may have helped a Virginia surgeon avoid a drunken-driving conviction, but it has also revived controversy over the validity of making a courtroom issue of the monthly physical and psychological changes reported by many women.
"It hurts our credibility," said Grace Burke, the prosecutor who lost the recent case. "I'm sure men are just shaking their heads at this."
Dr. Geraldine Richter, a 42-year-old orthopedic surgeon, was acquitted June 4 by District Judge Robert J. Smith.
Stopped for driving erratically while transporting her three children, Dr. Richter used abusive language and tried to kick a state trooper in the groin, the officer testified. Dr. Richter flunked a Breathalyzer test for blood-alcohol content.
Her lawyer, David Sher, used a two-pronged defense to raise what the judge called a reasonable doubt of intoxication. One expert witness said that the blood-alcohol reading was skewed higher because Dr. Richter had held her breath. Dr. Emine Cay, a gynecologist, testified that Dr. Richter's conduct was consistent with PMS.
A surprisingly rare legal claim in light of the widespread public awareness of the cyclical malady, Dr. Richter's reliance on PMS to excuse her behavior is dividing feminists, lawyers and health care professionals.
"It's fair that PMS should be admissible in a court of law, because really, for many women, there's nothing they can do to control it," said Gloria Allred, a California attorney active on women's legal issues.
Conversely, "The case sounds like what I'm scared of -- the use of a psychiatric diagnosis to excuse inexcusable behavior," said Dr. Nada Stotland, a University of Chicago psychiatrist. She is chairwoman of an American Psychiatric Association study of whether severe PMS should be officially listed as a mental illness.
Judge Smith drew criticism from feminists fearful that a renaissance of old myths about "raging hormones" could deny women high-level jobs or child custody.
"This decision just gives ammunition to people who want to deny women particular jobs," said Shirley Sagawa of the National Women's Law Center. "It reinforces the stereotypes that a lot of people have about PMS -- that there is a certain time of the month when women become completely irrational and dangerous."
Defendants in Britain and France have benefited from PMS claims since an Englishwoman accused of murder was convicted of a reduced charge of manslaughter in 1979. Only three cases are known under U.S. law.
In 1982, Elizabeth Holtzman, the Brooklyn district attorney at the time, vigorously opposed a PMS claim in a motion by Shirley Santos to dismiss a felony charge of beating her 4-year-old daughter. Ms. Santos abandoned the defense, plea-bargaining to a misdemeanor harassment count.
In 1983, a federal judge in Denver rejected the PMS contentions of Jamie Lynn Irvin, who had stabbed her roommate. And a Sanford, Fla., jury convicted Margaret Pitt in 1985 despite her argument that PMS caused her to assault three people with a car.
Population studies have shown that 40 percent to 60 percent of women report having at least mild symptoms of premenstrual syndrome. Generally occurring in the four days before menstruation, symptoms can include aggressiveness, irritability, alcohol intolerance, headaches, bloating and breast tenderness. The cause remains unknown, with hormonal imbalances providing one theory. Injections of the progesterone hormone have reportedly helped some women.
Only 3 percent to 5 percent of women in their reproductive years have the most disabling form of PMS, Dr. Stotland said. Studies of female prisoners have shown that women commit more crimes during a premenstrual week than at any other time. But one attorney has calculated that, at most, one-tenth of 1 percent of women afflicted with PMS commit violent crimes, according to the Women's Rights Law Reporter.