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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 ...»

-- [ Page 47 ] --

childbirth, there is no inherent reason why a battering relationship should be confined to women as victims.’ 218 Finally, in contemplating reasonableness specifically and the homicidal act of the battered woman, Leader-Elliot makes the cogent point that ‘[d]eadly force used in self defence is excused when it is reasonable to say that no-one – neither the aggressor nor the disinterested observer – is entitled to ask her for a further sacrifice of her own interests to those of the aggressor. If the law demands more, requiring unreasonable sacrifices, it forges a compact of complicity with the aggressor.’ 219 Furthermore, the case law appears to agree that the courts no longer regard proportionality as a requirement of self-defence. 220 With regard to self-defence and battered women specifically, it would appear that there has been a ready acceptance of battered woman syndrome by the Australian courts. 221 In line with this recognition, the cases of Runjanjic and Kontinnen and Osland have both admitted expert testimony to assist the court to understand the circumstances and lived realities of an accused. In Runjanjic and Kontinnen the court accepted the evidence of the expert to indicate specifically the general trends of conduct that might be expected from women in relationships of habitual violence but King CJ made it clear that the expert would not be explaining the particular responses of the appellant. 222 However, in Osland the court went even further and allowed the expert to express an opinion on the accused’s perception of danger from her abuser and also admitted testimony Above n50 at 211-2 (per Kirby J).

Above n66 at 437-8.

However, Bronitt and McSherry caution that lethal self-defence will not be available against every attack.: Bronitt and McSherry above n6 at 300. They note that where lethal force is used in defence, the evidence should establish that the attack involved a serious assault including threats of death or serious bodily harm (see above n22 at 146), rape or sexual assault (see above n13 at 666Lane above n45 at 451 and Walden (1986) 19 A Crim R 444, at 446) and continuous acute pain (see above n66 at 437-8; Zikovic (1985) A Crim R 396 at 401; and above n27 at 447). See also Bradfield above n6 at 201.

Above n69 at 720.

Runjanjic and Kontinnen above n183 at 120. An interesting issue that was raised in Runjannic and Kontinnen was whether the whole issue of expert evidence on battered woman syndrome did not deflect from the realities of the issues on trial and effectively place the deceased on trial as a batterer.: Runjanjic and Kontinnen above n183 at 125. Legoe CJ was adamant in refuting this argument and took the view that the right of the accused to present a defence is so fundamental to the law that it outweighs any perceived potential prejudice.: Runjanjic and Kontinnen above n183 at 125.

from the expert as to whether, based on the evidence presented, it could be said that the accused believed on reasonable grounds that she had no alternate means available to her to protect herself other than to kill her abuser. 223 Stubbs and Tolmie are, however, rather critical of the ready recognition for BWS by the Australian courts commenting that of the paucity of judicial discussion has been a lack of reported case law on the subject which has made it ‘difficult for lawyers, judges and academics alike to analyse legal developments and to put information

about relevant decisions to use in legal argument. 224 Specifically, they note:

Although this ready acceptance of BWS in Australian courts may have had positive outcomes for some defendants, it has resulted in an impoverished jurisprudence. … Australia still lacks a leading judgment … which addresses these issues at a comprehensive and sophisticated level. 225 Bradfield is also critical of the adoption of battered woman syndrome as the yardstick for all victims of domestic violence. She advocates for a broader framework which takes cognisance of the the nature and effected of battery noting that such an approach will allow for better recognition of the complexity of the woman’s life – ‘that women may be abused but fight back, that women may simultaneously love and fear their partner, … that women may previously have

left and then returned ….’ 226 She points out:

In arguing that a woman killed her violent partner in self-defence, this diversity needs to be communicated so that the [court] can reconcile the woman’s act of agency with her claim that she was seriously abused and that her response was reasonable. 227 Above n50 at 218.

Above n69 at 721. See also above n215 at 9; and Bradfield above n183 at 180.

Above n69 at 721.

Bradfield above n183 at 186.

Ibid. Schuller and Rzepa also note that the battered woman syndrome is ‘more suggestive of an irrational and emotionally damaged woman than one responding reasonably to the circumstances in which she finds herself. In short, instead of providing a framework for viewing the woman’s actions as justifiable given her situation, her actions are contextualized within a framework of dysfunction.’: RA Schuller and S Rzepa ‘Expert Testimony Pertaining to Battered Woman Syndrome: It’s Impact on Jurors’ Decisions’ 2002 26 Law and Human Behaviour 655, at 657.

Despite the courts ready acceptance of battered woman syndrome, in responding to the assertion by the Crown that battered woman syndrome should be treated as a separate defence in the Australian law, Callinan J in Osland was





unequivocal in his rejection of the argument stating explicitly:

The submission for the appellant that this Court should adopt a new and separate defence of battered woman syndrome goes too far for the laws of this country. There is no such separate defence in Australia. 228 In summing up the approach of the Australian courts to cases involving domestic violence, Bartal suggests that the case law indicates that within the judiciary there is sympathy for, although perhaps not complete understanding of, the abused woman who faces trial. 229 However, she warns that the courts need to be Above n50 at 243 (per Callinan J). In support of his approach, Callinan J referred to the persuasive foreign authority of Thomas J in Ruka v Department of Social Welfare where the

learned judge stated:

The syndrome, where it is found to exist, is not in itself a justification for the commission of a crime. It is the effects of the violence on the battered woman’s mind and will, as those effects bear on the particular case, which is pertinent. It is not, therefore, simply a matter of ascertaining whether a woman is suffering from battered woman’s syndrome and if so, treating that as an exculpatory factor. What is important is that the evidence establish that the battered woman is suffering from symptoms or characteristics which are relevant to the particular case.: above n214 at 173-4.

In Secretary Mildred J also rejected battered woman syndrome as a separate defence under the criminal law. In substantiating his judgment, the judge held that ‘[t]he focus is not on the accused’s status as a battered wife; it is on the question whether the force was not unnecessary force, and whether the threats which constituted the assault, having regard to the history of the relationship, were such as to cause the accused reasonable apprehension that death or grievous harm will be caused to her in the future if she did not act in the way she did.: above n72 at 9. See also L Hancock ‘Aboriginality and Lawyering: Problems for Justice for Aboriginal Defendants’ 1996 2 Violence Against Women 429, at 437; S Beri ‘Justice for Women Who Kill: A New Way? 1997 8 Australian Feminist Law Journal 113, at 123; and E Sheehy, J Stubbs and J Tolmie ‘Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations’ 1992 16 Criminal Law Journal 384–7 and 394.

Above n215 at 8.

cautious about taking the sympathy element too far for ‘[t]here is no right to take the life of a person because their conduct is outrageous or despicable. Courts must be careful not to … suggest that self-help in eliminating the problem of the battering male is legally acceptable.’ 230

–  –  –

CHAPTER EIGHT

RECOMMENDATIONS

8.1 INTRODUCTION This Chapter is structured using the same sub-headings as those contained in Chapter Four: the South African Law of Self-Defence. The intention behind utilising this format is to facilitate effective analysis and enable efficient recognition of the issues being targeted.

Acts of self-defence have, historically, inclined themselves towards a strong gender bias and Mather makes the specific point that women who have fought back in self-defence have traditionally been considered ‘unwomanly’ or ‘malelike’, biologically or genetically defective, or simply maladjusted. 1 ‘The notion of a violent female [was particularly threatening to society] since violence is antithetical to traditional concepts of ‘‘feminine’’ (sic).’ 2 Snodgrass is of the opinion that such a value framework still exists to a greater or lesser extent and comments that the trend has been for women who were found guilty of killing to be sentenced to harsher punishments than their male counterparts found guilty of the same offence or to be found guilty of a more serious offence as compared to men who killed. 3 With regard to intimate violence, Angel points out further that historically a woman was rarely given the opportunity to claim legal self-defence if she killed her abuser. As a result of this factual reality, the battered woman who killed their abusers would rely on a plea of mental impairment and criminal incapacity. It is submitted that, today, with the prevalent social and legal VM Mather ‘The Skeleton in the Closet: The Battered Woman Syndrome, Self-Defense, and Expert Testimony’ 1988 39 Mercer Law Review 545, at 561.

Ibid.

JL Snodgrass ‘Who Are We Protecting: The Victim or the Victimizer?’ 2002 33 McGeorge Law Review 249, at 250.

DJ Sonkin (ed.) Domestic Violence On Trial: Psychological and Legal Dimensions of Family Violence (Springer, New York: 1987) xix.

development, there should be no need for women accused of murder to fall back upon mental incapacity to excuse their conduct.

As noted in the preceding Chapters, 5 a distinction is made in criminal law between defences which may constitute a justification for otherwise criminal conduct and defences which may be applied to excuse such criminal behaviour.

South Africa, Canada and Australia have all sought to retain this distinction in the law. 6 Self-defence in these three jurisdictions falls under the rubric of the justification defences, which excludes unlawfulness. The U.S.A., on the other hand, does not maintain this distinction in the law and has conflated the defences of excuse and justification. Thus, in the U.S.A., in deciding the issue of selfdefence, the courts apply a more general normative standard of ‘reasonableness’. 7 The immediate question that demands a response is: Which approach is the better one to follow?

This question was argued by the defence in the recent South African case of Engelbrecht. 8 In casu the defence argued for a deviation from the current rule of the common law in favour of a looser ‘self-standing ground of justification or excuse applied to the facts of this case unshackled by the values informing other defences developed in different contexts for different reasons.’ 9 The basis for the argument was that such an approach would ‘develop the law in a manner consistent with the Constitution of the Republic of South Africa Act 108 of 1996’ in that the defence, as proposed, would simply hold the accused to the standard of reasonableness and negate the blameworthiness of her conduct in appropriate See Chapters Four, Five, Six, and Seven.

Although in referring to the Canadian law, Stuart notes pertinently that ‘the classification of … self-defence as a justification or an excuse is not clear-cut.’ For example, he indicates that a justification based on a reasonable belief (which is one of the conditions of self-defence in several jurisdictions) is, in reality, better classified as an excuse.: DR Stuart Canadian Criminal Law (Carswell, Toronto: 1982) 379. For further discussion on the issue insofar as South Africa, Canada and Australian law are concerned, see Chapters Four, Six and Seven.

See Chapter Five generally and specifically GP Fletcher ‘The Individualization of Excusing Conditions’ 1974 Southern California Law Review 1269, at 1269-1309. See also Leidholm 334 N.W.2d 811, 814-5 (N.D. 1983).

Engelbrecht 2005 2 SACR 41 W.

Ibid at 53.



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