This article has been published in ,the International Journal of Commerce, Business, and Social Science (IRJCBSS), Bangkok, November 2016, ISSN-2277-9310, Volume VI, Issue 7(I).
It is extremely important to realise that sexual crime is largely confused with psychological crime when it is committed in an atrocious manner. However, sexual and psychological crimes are different in their motive, action and commission. To understand the difference between the two it is necessary to study the details of these types of crime and criminals.
Sexual criminals commit crime involving sexual abuse, like - incest, rape, child abuse and sodomy due to lust, revenge, obsession, pleasure, fun and sometimes due to mental disease. Psychological crime can be attributed to various mental diseases like insanity, schizophrenia, split-personality, unsoundness of mind and pschopathy. In the present context the general tendency is to label every sexual criminal, a psychopath, whereas, in reality the two are broadly different from each other.
This paper attempts to flag that, Mens rea plays a very important role to distinguish any crime. This paper differentiates between sexual criminals and psychopaths with the help of ten case laws. Seven cases are of the different motives and forms of sexual crimes and three of psychopaths in which motive was disease. Finally, on the basis of the mens rea an attempt has been made to understand the intricacies between the perception and the reality between the two.
Keywords: Sexual crime, psychopaths, perception, reality, Law
Any sexual crime of a heinous nature is most often confused with psychopathic crime. There is a substantial ambiguity pertaining to sexual criminals and psychopaths unanimously. A focus on the mens rea will reveal that, there is a remarkable difference between the two. Sexual criminals commit sexual crimes, like, rape, sodomy, molestation and sexual abuse due to lust, fun, obsession, superstition, incest etc. On the other hand Psychopaths are mentally ill person who also commit the aforementioned crime but primarily due to disease, like, schizophrenia, dual personality disorder, psychopathic disorder etc. This paper emphasises mainly the difference between sexual criminals and psychopaths. Generally, their criminal offences are similar in nature for instance, rape and sodomy but the causation of crime is completely different.
According to the Indian Penal Code Mens rea and actus reas are two main elements of crime. The maxim, “actus non facit reum, nisi mens sit rea”, i.e., the act itself does not constitute guilt unless done with a guilty intent. The maxim, therefore, connotes that the act itself does not make a man guilty unless his intention was to commit a crime (Nath).
The Prerequisite of mens rea is essential to prove anyone guilty. Mens rea is an essential element in every crime. There may be no crime of any nature without an evil mind. There must be a mind at fault to constitute a criminal act. The concurrence of act and guilty mind constitutes a crime. Lord Diplock in the case of Swet v. Parsley said, ‘An act does not make a person guilty of a crime unless his mind is so guilty’.
This element particularly makes a distinction between the sexual criminals and psychopaths. Sexual criminals commit crime due to lust, fun, revenge, honour, incest, alcoholism etc. On the contrary, psychopaths commit crime due to disease. ‘Every odious sexual criminal is a psycho killer or psychopath’, is a myth not reality. Present work attempts to describe the perception and reality between the both.
This paper argues that the knowledge of differences between the two helps in understanding these crime and criminals better. It is pertinent to discuss the judicial response in order to get an insight into the legal framework designed to cope with the increasing incidences of such crime. However, it is difficult to make an estimate of criminal behaviour of psychopaths with precision due to under reporting of such crime and the difficulty in obtaining reliable data. All this makes the understanding of sexual criminals and psychopaths a challenging task.
Who are Psychopaths?
There are many reasons why Psychopaths are perhaps the most dangerous among all the mentally ill criminals. Psychopathy, also known as Antisocial Personality Disorder (APD), is a psychological personality disorder. Research has shown that these individuals lack emotions of conscience and empathy. They consistently display certain aspects of temperament which include lack of fear, lack of inhibition, reduced physical response to negative stimuli and indifference to the threat of pain and punishment. They display stimulus seeking behaviour remarkably do not have any remorse of their conduct.
Although, many works has been done on psychopaths in the world. Cleckley(1985) was the first who described psychopaths as hot-headed, manipulative, irresponsible, self-centered, shallow, lacking in empathy or anxiety, and likely to commit more types of crimes than other offenders. They are also more violent, more likely to recidivate, and less likely to respond to treatment. Generally, anyone has remarkable similarity of these criteria counts as a psychopath. There are several such lists in use. The most commonly used is called the Psychopathy Checklist Revised (PCL-R), developed by Robert Hare and his colleagues (1993). An alternative version was developed by Lilienfeld and Andrews (1996), called the Psychopathic Personality Inventory (PPI). The book that psychologists and psychiatrists use to categorize and diagnose mental illness, the Diagnostic and Statistical Manual of Mental Disorders, (DSM IV) contains a category for something called “antisocial personality disorder” (APD), while the World Health Organization delineates a similar category it calls "dissocial personality disorder." These are much broader categories than that of psychopathy. The category of psychopath is seen as included within this category but considerably smaller so that only roughly 1 in 5 people with APD is a psychopath (Kiehl and Buckholtz, 2010). On the basis of these works psychopaths can be characterised as:
(1)lack of remorse or empathy,
(7) low frustration tolerance,
(9) parasitic lifestyle,
(10)the persistent violation of social norms,
(11)need for stimulation and criminal versatility
On the basis of the above description it is evident that psychopathy is perhaps the most dangerous category among the mentally ill criminals. They do not have any remorse of their act. Their modes operandi reflects that they enjoy pain and that is why they commit brutal acts. This is a reason that when any vicious act is committed by the sexual criminals it is correlated with psychopaths.
Sexual criminals in contrast, have remorse and they also try to hide their act. Sexual criminals understand the consequence of their act. They always have motive behind their criminal act. Their modes operandi may be differ depending upon their mens rea. Sexual criminals can have any reason to commit crime, for instance, lust, fun, revenge, alcoholism, obsession etc. The modes operandi also differ according to their motives, for instance:
(3)Sexual abuse at the work place,
(8) Alcoholism and drugs,
This paper discusses ten case laws pertaining to sexual criminals and psychopaths to make out the differences between them on the basis of mens rea.
Nirbhaya case (gang rape)- mens rea- opportunist
The Delhi gang rape case, popularly known as ‘nirbhaya case’ involved a rape and fatal assault that occurred on 16 December 2012 in Munirka in South Delhi. The incident took place when a 23-year-old female physiotherapy intern, Jyoti Singh was beaten, gang raped, and tortured in a private bus in which she was travelling with her friend. Thirteen days after the assault, she was transferred to a hospital in Singapore for emergency treatment, but died from her injuries two days later. The incident generated widespread national and international coverage and was widely condemned, both in India and abroad.
All the accused were arrested and charged with sexual assault and murder. One of the accused suicide in the jail. The rest went on trial in a fast-track court. The juvenile was convicted of rape and murder and given the maximum sentence of three years imprisonment in a reform facility. Rest four remaining adult defendants were found guilty of rape and murder and were sentenced to death by hanging (Wikipedia, online).
2. Priydarshani Matoo case (rape & murder), mens rea- obsession
Priyadarshani Matoo, 26 years old, law student who was found raped and murdered in her house in New Delhi on January 23, 1996. Santosh Kumar Singh, son of a police inspector general was obsessed of her and even though he had passed out from the Law Centre in 1994, he had continued to visit the campus even thereafter. The appellant harassed and intimidated the deceased and despite her requests, did not desist from doing so.
Later she was found dead in her own apartment. She had been raped, struck 14 times with a motorcycle helmet, and finally strangled with a wire. After many twist and turns on 10th October, 2006, Santosh was finally awarded life imprisonment.
3. Aruna Shanbaug case (rape and coma), mens rea-revenge
Aruna Shanbaug was a junior nurse in her 20s at KEM hospital when she was brutally assaulted and raped by the ward boy, Sohanlal Bharta Valmiki, who she had scolded for stealing food that was meant for stray animals adopted by the hospital. She had just finished her shift, and was in the basement of the hospital changing before leaving for home. Her attacker had been lying in wait. He sodomised her and then strangled her with a dog chain, cutting supply of oxygen to her brain.
She was discovered in the basement 11 hours later, blind and suffering from a severe brain stem injury. Her attacker was freed after a seven-year jail sentence. Left bedridden, Aruna spent more than four decades being cared for by a team of doctors and nurses at the hospital.
In a landmark judgement in 2011, the Supreme Court rejected Ms Virani's petition, but decided that life support could be legally removed for some terminally ill patients in a ruling that allowed "passive euthanasia" for the first time (Gupta, 2015).
4. Asok Kumar Ganguly case, (sexual harresment at the work place), mens rea- fun
The former Supreme Court judge stepped down as head of the West Bengal human rights commission in 2014 after a law intern accused him of sexually harassing her at a hotel room. A three-member Supreme Court panel indicted Ganguly for “unwelcome behaviour” and “conduct of sexual nature”, prompting his resignation (Rangnekar, 2009).
5. Satish Mishra case, (Rape), mens rea-incest
In Shri Satish Mishra v. Delhi Administration and others a father was accused of incest with his four year old daughter, and there was a long history of differences between the husband and wife. He was sentenced for 10 years.
6. Mira road case, (Sexual abuse), mens rea- superstition
The Mira Road case shook the mind of the common man, where a tantrik in Mumbai raped two minor sisters. He (tantrik) allegedly encouraged the father of the family to rape his elder daughter, saying that he could become prosperous by doing so. The abuse went on for nine years and the mother was aware of it. The tantrik had sex with the older girl as well and allegedly made the mother stand nearby naked during the act. The victim's mother has admitted that she had consensual intercourse with the tantrik in her husband's presence. While the two girls want their father to be punished severely, they appear to be sympathetic towards their mother.
7. Kishan Lal case (sodomy), mens rea- unnatural sex
In Kishan Lal v. State Of Rajasthan, the accused committed sodomy on a four year old minor boy and thereafter fearing some action for his mis-conduct and apprehending that the victim would expose his misdeed before the villagers, he took the victim to the water reservoir situated in the field and drowned him into the reservoir and covered it with the lid. On the basis of this confessional and disclosure statement, he was convicted under Sections 302, 201 and 377, of the I.P.C. and awarded the sentence of life imprisonment.
8. Jeffrey Dahmer (psychopath), mens rea- disease
No list of famous psychopaths would be complete with a cannibal. Eating other people is a definite sign someone has crossed into the dark side. 1980’s serial killer Jeffrey Dahmer’s , a handsome and well educated man, homosexual, he tortured and killed young boys, made sex with their bodies, dismembered them and collected several parts. He also cannibalized several of them. Twenty-one victims were his probable tally. Jeffrey Dahmer was arrested by the police who found several human skulls and corpses in his house. He captured and killed 15 young men, some of whom he would rape and then store in containers filled with acid. It was also discovered that Jeffrey practiced cannibalism and would eat the flesh and organs of his victims. He was considered as being sane and was thus found guilty of 15 murders. He was consequently sentenced to life imprisonment (enkivillage, online).
9. Elizabeth Bathory (psychopath), mens rea- disease
Elizabeth Bathory is perhaps amongst the most infamous female psychopaths as far as females go. She is notoriously known for the brutal serial killing of hundreds of girls and women. She was a countess that belonged to the Bathory noble family of Hungary during the late 1500s. Atrocities include severe beatings; burning or mutilation of hands, faces and genitalia; freezing of victims; biting of flesh of faces and other body parts; surgery on victims; starving of victims; and rape and molestation of victims.
Though unconfirmed, it is said that she killed up to 650 women, who she would also mutilate and torture, she believed that blood from virgin can keep her skin forever young. There were more than 300 witnesses who were willing to testify against her. She was eventually sentenced to home arrest, where she died in 1614 (PositiveMed, online).
10. The Nithari killer (psychopath), mens rea- disease
Surinder Koli was the domestic help of Moninder Singh Pandher, a wealthy businessman from Noida. Initially in 2006, they were both arrested in connection with the discovery of skulls of missing children in Nithari village on the outskirts of Noida. The case took many twisted turns and there was a huge media furore over what was really going on. There were accusations of rape, cannibalism, pedophilia and even organ trafficking - some of these had substance, while others were mainly rumours. As of now, Surinder Koli has been found guilty of 5 homicides and is on death row while Pandher awaits his fate as there are 11 other unsolved murders under the same investigation.
Analysing all the above cases reveals that due to complex human behaviour pattern there are diverse mens rea for the commission of the act. Although it is evident that psychopaths commits crime only due to disease. Unfortunately at present psycopathy is not noticed in our legal system, despite the fact that it is a very severe disease of mental illness. Many sexual cases of incest, rape, sodomy and insanity are apparently confused with cases of psychopathy. However, all crimes are different in their temperament, motive and severity and hence rationally they should be understood separately and consequently deserve appropriate judicial response. (Scoopwoop, online).
An overview of the nature of sexual crime particularly brutal sexual crime indicates that generally people at large try to label such offenders as ‘psyco’ without giving any consideration to the key motives and mens rea behind the commitment of such crime. Considering the cases of sexual and psychopathic crimes above it is clear that though apparently all seem to be the same but after in depth analysis it is evident that they can be distinguished on the basis of mens rea. Offences like incest, rape and child abuse are generally misinterpreted as psychopathic disorders. People generally confuse these crimes with psychological crimes, as they are quite similar in nature but still are different from other types of crimes. It would be prudent that proper investigation should be done at every stage at the time of arrest, investigation, trial and sentencing etc. Although, scientifically both types of criminals are poles apart and it is not possible generally to recognize and distinguish them easily.
To understand the basic nature of sexual and psychological criminals, it is necessary to study their life. On the basis of an overall assessment of their traits, the grounds of distinction can be easily drawn. Having drawn the distinction the reaction to the crime will differ and will assist in appropriate interpretation by the Judiciary and the society at large.
Sexual crime always has a motive which is known only to the offender. The motive can be lust, pleasure, fun, revenge, obsession and sometime anti-social behaviour. Psychopathy is an Anti-social behaviour and it is different from sexual crime. Psychopathic behaviour is entirely due to disease in which the offenders also fail to understand the nature of the act and the consequence of it. They do not hide their act. On the contrary, the sexual crime offenders have a specific motive behind the act and they even try to hide their act. Moreover, all sexual crimes are not psychopathic crimes but psychopathic crimes can be sexual crimes. For instance in the infamous Nithari case, the ambiguity appeared due to the nature of commission of sexual crime by psychopath. This ambiguity can be resolved by in depth probing the motive, which is due to disease and not because of any motive of sexual crime. The legal fraternity by devising appropriate mechanisms for judging any crime and by removing the confusion between both the types of crimes can help in imparting justice to the vicyims. Yet there can be certain borderline cases where it would be difficult to draw a line of distinction between the two. Expert knowledge, interdisciplinary approach, appropriate legislation and judicial intervention can then come to our rescue.
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