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«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»

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Self-defence as a ground of

justification in cases of battered

women who kill their abusive partners

CANDIDATE’S DECLARATION:

I declare that “Self-defence as a Ground of Justification in Cases of Battered Women

Who Kill Their Abusive Partners” is my own work and that all the sources that I have

used or quoted have been indicated and acknowledged by means of complete

references.

SELF-DEFENCE AS A GROUND OF JUSTIFICATION IN CASES OF BATTERED

WOMEN WHO KILL THEIR ABUSIVE PARTNERS

by DIVYA SINGH Submitted in accordance with the requirements for the degree of

DOCTOR OF LAWS

at the

UNIVERSITY OF SOUTH AFRICA

PROMOTER: PROFESSOR S LÖTTER

AUGUST 2009 INDEX INTRODUCTION 1

PART ONE: DOMESTIC VIOLENCE

CHAPTER ONE 9

AN HISTORICAL PERSPECTIVE ON DOMESTIC VIOLENCE

1.1 INTRODUCTION 9

1.2 AN HISTORICAL PERSPECTIVE ON DOMESTIC VIOLENCE 12

1.3 DOMESTIC VIOLENCE IN SOUTH AFRICA 20

1.4 CHANGING ATTITUDES TO DOMESTIC VIOLENCE 23 1.4.1 The Effect of the Feminist Movement 23 1.4.2 The Evolving Human Rights Culture 24 1.4.3 The Abolition of the Rule that the Husband is the Head of the Household 25

1.5 CONCLUSION 25

PART ONE: DOMESTIC VIOLENCE

CHAPTER TWO 27

CHARACTERISTICS OF AN ABUSER AND A VICTIM OF DOMESTIC

VIOLENCE AND THE PSYCHO-SOCIAL, SOCIO-ECONOMIC,

AND ENVIRONMENTAL FACTORS THAT INFLUENCE AN ABUSED

WOMAN’S DECISION TO REMAIN IN AN ABUSIVE RELATIONSHIP

2.1 INTRODUCTION 27

2.2 THE ABUSER 28

2.3 THE VICTIM OF DOMESTIC VIOLENCE 39

2.4 PSYCHO-SOCIAL, SOCIO-ECONOMIC, AND ENVIRONMENTAL

FACTORS THAT INFLUENCE AN ABUSED WOMAN’S

DECISION TO REMAIN IN AN ABUSIVE RELATIONSHIP 43

2.4.1 Understanding Why Battered Women Remain In An Abusive Relationship 44 2.4.1.1 Sanctity of the Home 45 2.4.1.2 Relationship with the Criminal Justice System 47 2.4.1.2.1 The Police Service 47 2.4.1.2.2 The Domestic Viole

–  –  –

Despite the fact that in recent years, research and the popular presses have demonstrated the dark side of family relations, the notion of the home as a centre for warmth and happiness, a refuge from the outside world, is still very prevalent in society. Violence committed by one intimate partner on the other within the confines of the domestic relationship is thus, perhaps one of the greatest betrayals of human trust that can be perpetrated. Domestic violence is a worldwide scourge: yet, as with the rest of the social order, many legal systems have struggled to confront the reality and effects of intimate aggression.

Accordingly, legal rules have sometimes proved unsuitable or inadequate to protect the victims of such abuse and to deal fairly and justly with its consequences.

This study focuses on violence in the heterosexual domestic relationship and specifically on men as the perpetrators of the abuse and women as the victims. 2 This emphasis is in no way intended to minimise the seriousness of women abusing men or intimate violence in same-sex relationships or abuse against children in family relationships: however, each of these topics is sufficiently wide, in its own right, to be the subject of an independent study.

Partner abuse has been extensively researched in the past years and numerous theories attempt to explain why men batter their intimate partners. However, notwithstanding all the practical and scientific, clinical and sociological input, intimate violence against women remains a commonly misunderstood issue. Part of the problem is the diverse responses of women who are abused - some William Heale, 1609.

For a comprehensive definition of ‘domestic violence’, see section 1 of the Domestic Violence Act 116 of 1998.

women will endure their plight in silence and continue to live with the abuser;

other women take steps to escape from the abusive environment; whilst others stay in the relationship and fight back and sometimes even kill their abusers whilst defending themselves. As this research will show, partner abuse is a complex and intricate problem that goes beyond normative partner interactions and acts of violence between strangers. Social, cultural, financial, emotional and psychological factors all affect the attitude of the woman to her situation, whilst historical attitudes to and sex role stereotypes of women, the justice system and welfare services all converge to determine the action of the victim. 3 Authorities on criminal law agree that in order for there to be a ‘crime’, certain elements must exist. There must be an act; the act must be unlawful that is, it must be prohibited by law; the actor must have acted with criminal capacity; and lastly, the act must satisfy the element of fault. 4 For the crime of murder specifically, there must be proof of the unlawful and intentional causing of death of another human being. 5 Thus, it is that not every act which results in the death of another is a crime under the law. The legal definition specifically requires that to be judged as murder, the act must be accompanied by the element of unlawfulness and satisfy the element of intention (mens rea). Ostensibly therefore, whilst it may appear that a crime has been committed, one of the ways in which a perpetrator may be absolved from liability is if s/he can show that the conduct was justified and, therefore, not unlawful. In this context Robinson





notes:

Justified conduct is correct behaviour which is encouraged or at least tolerated. In determining whether conduct is justified, the focus is on the act, not the actor. [In such cases, one does not deny that the conduct may be prima facie unlawful and undesirable but the general view of For a more detailed discussion of the individual issues, see generally Chapters Two and Three below.

See CR Snyman Criminal Law (Butterworths, Durban: 2002) 32-9; and J Burchell Principles of Criminal Law (Juta and Co Ltd, Lansdowne: 2005) 139-54.

CR Snyman Criminal Law (Lexis Nexis, Durban: 2008) 447; see also Burchell above n4 at 667.

society is that] criminal liability is inappropriate because some characteristics of the actor vitiates society’s desire to punish him. 6 Conduct that is ‘justified’ is distinguished from conduct that is ‘excused’ in law. 7 In the former case, the focus is on the act and seeks to show that the act was not unlawful whilst ‘excuse’ excludes intention on the part of the perpetrator. 8 For the purposes of this study, the crime is murder and the ground of justification is self-defence; the situational construct is that of a battered woman who has killed her abusive partner. As Snyman points out, the rules of natural justice accord to every person the right to defend him- or herself against an unlawful attack. 9 In relying on self-defence as a ground of justification for the battered woman who kills her abuser, the message is that ‘the relevant conduct is approved or, at least, tolerated’ in that particular circumstance. 10 Were one to accept a defence of excuse the message would be different; for the law would then be saying that despite having recognised that the actor is free from blame, his actions remain wrongful and should be avoided. In this research the argument presented will not be directed at excusing the accused but will concentrate on an acknowledgement that under the circumstances, the abused woman reasonably believed that she was in danger of being killed by or sustaining grievous bodily harm from her abusive partner and that her only alternative was to kill him. 11 Her actions were, therefore, justified and not PH Robinson ‘Criminal Law Defenses: A Systematic Analysis’ 1982 82 Columbia Law Review 199, at 229. In a similar vein Snyman points out that it is not always possible for the state to be on hand to protect an individual against an unlawful attack ‘and for that reason every individual today still has the right to take the law into her own hands … and temporarily act on behalf of the state authority in order to uphold the law.’: above n5 at 103.

S Bronitt and B McSherry Principles of Criminal Law (Law Book Co., New South Wales: 2005) 301; A McColgan Women Under the Law (Longman, Essex: 2000) 202; I Leader-Elliot ‘Battered But Not Beaten: Women Who Kill in Self-Defence’ 1993 15 Sydney Law Review 403, at 405.

J Dressler ‘Justifications and Excuses: A Brief Review of the Concepts and the Literature’ 1987 33 Wayne Law Review 1155, at 1162-3.

Above n5 at 103.

G Mousourakis ‘Distinguishing Between Justifications and Excuses in Criminal Law’ 1977 1 Stellenbosch Law Review 165, at 166.

Criminal law theory makes the distinction between justification and excuse. However, Stuart notes that many writers have avoided exploring the distinction on the basis that to do so would serve no real purpose for the law. He notes, ‘The different terminology is said to relate to an ancient era preceding the Middle Ages when justification absolved, while excuses were merely a matter for mitigation of punishment. The legal effect of both has been the same.’: DR Stuart unlawful. However, as will become evident from this study, the battered woman’s conduct in killing her abusive partner has not always complied with the prevalent standards for self-defence and her conduct has in several cases – especially cases prior to the 1980’s - been found not to be justified. 12 However, Young

notes:

In considering the defences available, it should be borne in mind that the options available to the woman before the point at which lethal force is used (that is, the possibility of leaving the relationship, calling the police, getting an injunction and so on) are of limited effectiveness. To forget this, as many commentators do, is to augment the problems faced by battered women. 13 This study recognises these flaws. One of the primary incentives for the research was the hope that it would provide a necessary basis for informed legal reform. It is respectfully submitted that greater research into the extent and effects of domestic violence will further challenge conventional legal understandings and myths that impact negatively in cases of domestic homicide. Much credible research has already been done in this area but the discourse may certainly not be described as saturated. It is essential that the criminal justice and legal systems develop an understanding for the victims; for, it must be understood that the battered woman who stands accused of killing her abusive partner is not Canadian Criminal Law (Carswell, Toronto: 1982) 379. Other writers like Fletcher disagree arguing that a distinction between the two concepts is vital. In this regard Fletcher notes (correctly, it is respectfully submitted) that excuses do not express policy goals but are simply reflections of compassion and justice in the individual case.: GP Fletcher ‘The Individualization of Excusing Conditions’ 1974 47 Southern California Law Review 1269, at 1308-9. Similarly, Snyman supports the distinction for the reason that, in his view, justification evaluates the act whilst excuse is a judgement of the person and his/her ‘individual aptitudes, talents, weaknesses and insight’.: Snyman above n4 at 99 confirmed above n5 at 101. See also above n10 at 167, 178and 180 where Mousourakis emphasises the importance of the distinction between the defences which justify and the defences which excuse the alleged proscribed conduct.

Much has been written and many writers agree that the rules of self defence are male biased and written from the perspective of an assault between strangers - for a discussion see Lavallee (1990), 55 C.C.C. (3d) 97 at 115 (S.C.C.).

A Young ‘Conjugal Homicide and Legal Violence: A Comparative Analysis’ 1994 31 Osgoode Hall Law Journal 761, at 767. Confirming this comment, Fredericks and Dowd also found that in South Africa and other countries (including Australia, America and England) wife abuse remains still one of the most underestimated and under reported crimes. : IN Fredericks and LC Dowd ‘The Privacy of Wife Abuse’ 1995 3 TSAR 471, at 473.

looking for sympathy: rather, she seeks a fair hearing which, in this instance, would include an appreciation of her lived reality.

In defining intimate homicide, Showalter, Bonnie and Roddy note:

These offenses are often end points in an intense but ambivalent relationship in which one spouse (or spouse equivalent), the eventual victim, assumes the role of “tormentor” and the other, the eventual aggressor, perceives himself or herself to be sorely abused but is unwilling or unable to terminate the relationship. 14

They continue with the argument that in most cases, one finds that the law tends:

… to address the public sphere and to neglect the private one that characterizes relationships and exchanges within marriage and the family.

Because women have generally been confined to the private sphere and excluded from the public one through various limitations on outside employment and careers, the law has traditionally ignored their concerns and left them unprotected, along with children. The superior status of the male in the relationship and in the family, and the well-established dependence of women on men, have justified delegating to men the control and the administration of justice in the private sphere, leaving women dispossessed and unprotected. The irony, danger, and difficulty of a situation when their supposed protector is instead their attacker are clear and unescapable. 15 In the case of battered women who retaliate with aggression, which results in the death of the batterer, one can be confused as to who is the real victim. In such cases, women sometimes find it difficult to meet the requirements of ‘reasonableness’ as defined by the law of self-defence because of the stereotypes and misconceptions that abound with regard to abusive relationships.

CR Showalter, RJ Bonnie and V Roddy ‘The Spousal-Homicide Syndrome’ 1980 3 International Journal of Law and Psychiatry 117, at 117.



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