«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»
This is an important distinction that needed to be made. It is arguable that had the court in Makwanyana remained silent, it could have led to the ludicrous charge that a killing in self-defence could not be justified for being contrary to the spirit of the Constitution. Such an argument would clearly contradict the principles of individual autonomy and the provision of equality contained in the Bill of Rights, making it appear that an aggressor’s rights were being given precedence. 34 At this point, the dictum of Edeling J in Mokgiba bears recall namely, that where an accused can demonstrate that s/he was confronted with a reasonable fear of threatened danger, s/he is entitled by law to use all force and all means to protect against the threat – even if it could result in the death of the perceived aggressor. 35 In casu, the court was satisfied that there could be no obligation upon the accused to wait until the attack had commenced prior to retaliating.
The Constitution of the Republic of South Africa 108 of 1996 - section 9.
Mokgiba 1999 1 SACR 534 O, at 550.
Above n24 at 283.
Above n18 at 191.
Human Rights in International Law Basic Texts (Council of Europe Press, Strasbourgh: 1998) 159.
In considering the deceased’s right to life in Ferreira, Howie P noted:
Sexual violence and the threat of sexual violence goes to the core of women’s subordination in society. It is the single greatest threat to the self-determination of South African women. It also, therefore, means having regard to an abused woman accused’s constitutional rights to dignity, freedom from violence and bodily integrity that the abuser has infringed.
It is also necessary … that in weighing up the process due weight be accorded to the fact that the offender has taken the extreme step of depriving the abuser of his constitutional right to life. 42 Thus, in reviewing the relevant provisions of the Constitution of the Republic of South Africa Act, 1996, the arguments of the court in Makwanyana and the other cited authority, one can state with a reasonable degree of certainty that insofar as self-defence is concerned, whether the ‘choice of evils’ 43 doctrine or the ‘autonomy of individual rights’ dogma - as outlined by Burchell 44 - is applied, killing in self-defence will be justifiable: provided that there is compliance with all the specified conditions of the defence. 45 Thus, whilst it is not expected that a court rules that in making an attack, the attacker completely forfeits his/her right to life, a defender should not be punished for protecting him-/herself against an act of harm or a threat of harm.
8.2.2 The Attack Must Have Been Imminent
In South Africa the condition of imminence under the law of self-defence has been authoritatively acknowledged. 46 In the U.S.A. temporal proximity is also a condition of self-defence with some of the states referring to the requirement of imminence of harm whilst others prefer the stricter requirement namely, that the Ferreira and Others 2004 2 SACR 454 SCA, at 469.
Ashworth speaks of the ‘choice of lives’ rule: above n24 at 289.
J Burchell Principles of Criminal Law (Juta, Lansdowne: 2005) 231.
See also above n21 at 110 fn55.
See Chapter Four.
harm or threat of harm must be ‘almost immediate’ before the conduct of the accused will be justifiable in self-defence. 47 The condition of imminence has proved to be one of the more controversial questions in cases of self-defence.
This has been especially noticeable in cases involving intimate violence and the so-called non-confrontation self-defence cases.
In dealing specifically with the non-confrontation cases, many battered women charged with the murder of their intimate partners have testified that they ‘killed their abuser while he was sleeping because they honestly believed that he would kill them when he awoke’. 48 However, the South African law on self-defence does not recognise ‘an honest belief in the imminence of danger’ as being sufficient for the purpose of self-defence and justifying the accused’s conduct. 49 The test for imminence under the South African law requires that a reasonable person in the circumstances of the accused would have believed that death or serious bodily harm was imminent. Whilst the test is subjective to the extent that the control person is placed in the same circumstances as the accused, the question which the court must ultimately decide is whether the woman reasonably believed that her sleeping (or otherwise incapacitated) victim was about to harm or kill her. The same question arises in the case of women who react and kill their partners some time after an abusive episode has lapsed.
Under the traditional interpretation of the condition, it may be said that in such circumstances, at the time of the killing, the woman was not under imminent threat from her abuser as the danger had passed.
The traditional requirement of imminence in self-defence has its historic basis in a once-off violent confrontation between strangers of the male sex and in the situation where the assailant and victim lead separate lives. 50 In the domestic See Chapter Five. Interestingly, the public international law of the U.S.A. has completely shed the demand for temporal proximity between a threat and a retaliatory offensive under the public
law of self-defence acknowledging that to require otherwise would give rise to grave injustices.:
See S Wallace ‘Beyond Imminence: Evolving International Law and Battered Women’s Right to Self-Defense’ 2004 71 The University of Chicago Law Review 1749, at 1771.
See Chapter Six.
An honest belief will be considered under putative self-defence which may have the concomitant result of excusing the conduct of the accused. See above Chapter Four fn 127 for a discussion of putative self-defence in South Africa.
Willoughby unreferenced in Lavallee (1990), 55 C.C.C. (3d) 97 at 115 (S.C.C.).
relationship, however, the victim shares a home with her adversary, and there is no coming together for a moment, followed by separation shortly thereafter, as is the case of assault between strangers. Thus, in the case of the abused woman, who is unable to predict with any certainty the time of the next assault, she is always in danger of death or serious bodily injury. It is submitted that the conclusion expressed variously by Scales, Ewing and Eber that, from the battered woman’s point of view the danger is always imminent, is correct. 51 The fact of her lived reality is that the threat of violence is ever-present and the attack always remains on foot.
Recognising the inherent unfairness in the historic basis and the traditional application of the condition of imminence in cases of self-defence, 52 the Canadian and Australian laws of self-defence have no such condition: Rather than focussing on the question of temporal proximity between the attack and the defence, the law and courts have merely questioned whether the defensive response was necessary and reasonable in the circumstances. 53 AC Scales ‘Feminists in the Field of Time’ 1990 42 Florida Law Review 95, at 112; CP Ewing Battered Women Who Kill: Psychological Self-Defense as a Legal Justification (Lexington Books, Massachusetts: 1987) 48; and LP Eber ‘The Battered Wife’s Dilemma: To Kill or Be Killed’ 1981 32 Hastings Law Journal 895, at 929.
In also lending his support for the view that the historic interpretation of self-defence fails to taken into account the new circumstances created by intimate violence and battery, Willoughby notes that support for the traditional imminence requirement stands, primarily, on two legs: (a) because the threatened harm is not absolutely certain to occur, the defendant should not be allowed to react prematurely in applying deadly force against a threat that may not yet exist or even materialise; and (b) there must be no reasonable alternative means of avoiding injury or harm that was being threatened.: MJ Willoughby ‘Rendering Every Woman Her Due: Can A Battered Woman Claim Self-Defense When She Kills Her Sleeping Batterer?’ 1989 38 University of Kansas Law Review 169, at 184-5. However, he too recognises that the first leg assumes an unfamiliar assailant whose behaviour is not known to the accused.: at 184. Willoughby continues to state that the battered woman’s position is distinguishable in that she not only knows her assailant but also has a good idea of his behaviour and knows that the threatened harm is certain to occur. With regard to the second leg, it has been noted that escape from the abusive environment is, in most cases, not a feasible alternative, and ‘may also be sentencing her to “murder by instalment”, because any attempt on her part to flee is likely to be unsuccessful and will [inevitably] provoke further violence from her battering husband when he awakes.’: at 187. See also Chapter Two. Furthermore, it should be recognised that requiring her to leave the place of abuse means, in many instances, that the law is expecting her to flee her own home – an obligation not imposed upon other defenders.
Above n50 at 115. See also Pétel (1994), 87 C.C.C. (3d) 97; Cinous (2000), 143 C.C.C. (3d) 397 (Que. C.A.); and Secretary (1996) 107 NTR 1.
The research on domestic violence shows that in assessing the requirement of imminence, what is often relevant is evidence that might distinguish the past and prior threats and acts of abuse by the abuser from the act which immediately preceded the accused’s lethal reaction. Studies demonstrate that the victims of habitual violence often become attuned to patterns of violence from their partners and are able to interpret certain conduct to indicate an imminent attack or a more serious attack. 54 Walker confirms that a woman who is a victim of domestic violence is often so finely in touch with the behaviour of her abuser that any sudden change in the pattern of violence may correctly indicate to her that the situation has altered and that the threat will, on the occasion in question, be carried out and that her death is imminent. 55 Thus, the response of a victim of abuse is often based on her greater acuity in detecting danger from an abusive partner.
Somewhat differently but equally relevant, Jacobson et al found that after the experience of a single act of severe battery, some victims of domestic violence became ‘hyperalert’ to possible violence and perceived any implied or low level act of violence as potentially a reasonable and imminent threat to her and responded accordingly. 56 Jacobson et al express the view that such a reaction is not unreasonable, given the fact that in an abusive relationship, (i) it is always the abuser who determines the extent of the violence; and (ii) the victim seldom has any means of knowing how far he will go and when he will stop. 57 The National Institute of Justice (U.S.A.) also confirmed the conclusion of ‘hyperalertness’ to violence and recorded that in cases where the abuser had made threats to kill his ‘Validity and Use of Evidence Concerning Battering and its Effects in Criminal Trials’ U.S.
Department of Justice NCJ 160972 May 1996 or http://www.ncjrs.org/txtfiles/batter.txt 24 [accessed 21/10/2001]. Also above n14 at 127.
LE Walker Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Row, New York: 1989) 105-6. See also A Browne When Battered Women Kill (Free Press (Macmillan), London: 1987) 129.Emphasising this point Crocker states, ‘A subtle gesture or a new method of abuse, insignificant to another person, may create a reasonable fear in a battered woman.’: above n14 at 127.
N S Jacobson, J M Gottman, J Waltz, R Rushe, J Babcock, and A Holtzworth-Munroe ‘Affect, Verbal Content, and Psychophysiology in Arguments of Couples with a Violent Husband’ 1994 62 Journal of Consulting and Clinical Psychology 982.
Husbands who participated in the programme which formed the basis of the study by Jacobson et al admitted that once the violence began, there was nothing that the woman could do to stop it.
Even strategies such as wife withdrawal produced a continuation of the violence rather than a suppression of it. The researchers concluded that, in a very real sense, women seem to have little recourse when it came to stopping the fight once it had commenced: above n56 at 986.