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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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spouse, and she perceived this outcome as inevitable, the passage of time from the threat could, in fact, actually serve to aggravate her fear. 58 Even in cases where she may have overcome the battering and evoked her internal coping mechanisms since the threat was made, any renewed indication that the batterer was willing to act out the threat could trigger the full intensity of her fear reaction. 59 Thus, in cases where the threat appears not to have been immediate (or imminent), a woman’s history of being battered is especially vital to understanding her belief of the dangerousness of her situation and its likely outcome. 60 It is important to bear in mind that in situations of non-confrontational selfdefence, the battered victim is not claiming ‘I am abused and therefore I have a right to kill my abuser’: rather, her response is that ‘because of the history of violence in this relationship, I was sensitive to cues from the abuser that made me believe that I was in imminent danger’. 61 In the U.S.A. where the condition of imminence is an express requirement of selfdefence, some of the legal authorities have been clear about the need to jettison the condition of imminence from the law. They argue variously that the condition of imminence should be replaced, in law, by an assessment focussing on the reasonableness and/or necessity of the accused’s conduct (like the law in Canada and Australia). 62 Adopting a contrary position Rittenmeyer maintains that avoiding the requirement of imminent present danger introduces a clear violation of existing principles of criminal law for it appears to bestow ‘upon the abused wife the unique right to destroy her tormentor at her own discretion.’ 63 Arguments such as the uncertainty of the threatened harm ever occurring, and Above n54 at 22.

Ibid. See also RJ Patterson and RWJ Neufeld ‘Clear Danger: Situational Determinants of the Appraisal of Threat’ 1987 101 Psychological Bulletin 404, at 405.

EP Stuart and JC Campbell ‘Assessment of Patterns of Dangerousness with Battered Women’ 1989 10 Issues in Mental Health Nursing 245; see also above n68 at 20.

MA Douglas ‘The Battered Woman Syndrome’ in D J Sonkin (ed.) Domestic Violence On Trial:

Psychological And Legal Dimensions Of Family Violence (Springer Publishing Co., New York:

1987) 58-9.

AS Burke ‘Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman’ 2002 81 North Carolina Law Review 211, at 273.

SD Rittenmeyer ‘Of Battered Wives, Self-Defense and Double Standards of Justice’ 1981 9 Journal of Criminal Justice 389, at 390.

the fact that even if the harm did materialise, its effects remain unsure form the basis of the latter opinion. 64 Veinsreideris is of a similar mind and speaking specifically to the issue of imminence and the ‘blurring of the edges of self-defence law’ by the courts and legal commentators when dealing with battered women who attack their partners in situations of non-confrontation, he cautions that such subtle manipulation and change of the substantive law of self-defense, while possibly desirable to achieve just results in this narrow context will lead to undesirable results in other contexts. 65 Under the South African law, the courts have adopted a flexible application of the condition of imminence. This approach was repeated in Engelbrecht where, in deciding the issue, the court bound itself to a proper understanding of the lived reality and circumstances of a victim of domestic abuse. 66 Accordingly, in light of the approach that has been followed by the courts generally and specifically the court in Engelbrecht, the writer sees little need to recommend change to the South African law with regard to the prevailing condition of imminence. 67 Ibid. See Schroeder 261 N.W.2d 759 (Neb. 1978); and also JW Roberts ‘Between the Heat of Passion and Cold Blood: Battered Woman’s Syndrome as an Excuse for Self-Defense in NonConfrontational Homicides’ 2003 27 Law and Psychology Review 135, at 155. However, one questions whether, given the environment of the abusive relationship, any person could reasonably argue that when the abuser walks away after threatening to kill his partner, that threat is, in fact, withdrawn.

ME Veinsreideris ‘The Prospective Effects of Modifying Existing Law to Accommodate Preemptive Self-Defense by Battered Women’ 2000 149 University of Pennsylvania Law Review 613, at 624. In formulating his warning, Veinreideris he was thinking specifically of the abuse of the law in situations of prisoner violence and prison homicides.: at 628-632.

Above n8 at 134 and 146.

If, however, there was a need to make a proposal for amendment, the writer subscribes to the approach adopted by the Australian common law jurisdictions namely that a specific condition of imminence be deleted from the legal requirements of self-defence and the issue be simply ‘whether the accused had a belief based on reasonable grounds that the defence was necessary.’: See RA Rosen ‘On Self-Defence, Imminence and Women who Kill their Batterers’ 1993 71 North Carolina Law Review 371, at 375-6; and also Chapter Seven. This view is also endorsed by the Canadian Supreme Court in Lavallee above n50 where the court stated clearly that imminence was not the only means of determining whether an abused woman had any other alternatives available to her in defending herself against the unlawful attack.: at 115. See also Pétel above n53 at 97 and Cinous above n53 at 129. If such a proposal were to be followed, it would to be done by way of specific appropriate legislation. In this vein Wolhuter proposes that if it is found that the legal requirements of self-defence have been satisfied, ‘a gender-sensitive approach necessitates the eschewal of the requirement of imminence, and the infusion of the criterion of the reasonable person with an awareness of the structural power dynamics that underpin domestic violence.’: L However, the writer is cognisant that other provincial divisions are not bound by the decision of the Witwatersrand Local Division and the interpretation adopted in Engelbrecht cannot be taken as settled law. However, it is respectfully submitted that, generally and specifically with regard to cases involving domestic violence, subsequent courts would serve the law best were they to follow the approach established in Engelbrecht. In dealing with all cases, the courts must be alive to the need to give accurate and incisive attention to the circumstances of the accused.





In Mogohlwane, in evaluating the condition of imminence in self-defence, Schabort J drew an interesting analogy with the law of spoliation. Citing Mans v

Loxton Schabort J held:

… if the recovery is instanter in the sense of still being a part of the res gestae of the act of spoliation then it is a mere continuation of the breach of the peace which already exists and the law condones the immediate recovery, but if dispossession has been completed, … then the effort at recovery is … not done instanter or forthwith but is a new act of spoliation which the law condemns. 68 In cases of victims of battery and intimate violence, the entire lived experience of the victim is one of abuse. This is the res gestae of the abusive relationship. It is submitted that because the actual physical violence may be episodic or cyclical cannot deny the fact that the fear of harm, over which she has no control, is always present. It is thus further submitted that each act of violence by the abuser is not a new act of violence but is part of the res gestae of the abusive relationship and a continuation of his reign of terror over his victim.

This fact is of critical importance when assessing the condition of imminence in cases involving domestic violence.

Wolhuter ‘Excuse them though they know what they do – the distinction between justification and excuse in the context of battered women who kill’ 1996 9 South African Journal of Criminal Justice 151, at 165.

Mogohlwane 1982 2 SA 587 T, at 591.

8.2.3 The Defence Must Have Been Necessary

In defining this condition of self-defence, Snyman states:

The execution of the defensive act must be the only way in which the attacked party can avert the threat to her rights or interests. 69 An issue that has been raised in cases of victims of domestic abuse charged with murder is whether killing the abuser was, in fact, necessary and the only reasonable alternative. In light of the research and literature on the subject, it is submitted that for many victims of abuse, killing the abuser is the only means out of the abusive environment. 70 In Engelbrecht this proved to be the vexed issue with both assessors finding that, in fact, the accused had acted unreasonably as she had failed to give the police service an adequate opportunity to assist her. 71 Despite the questionability of the factual finding, the application of the rule is in

keeping with the authority of Snyman who states:

The present rule merely means that the threatened person may not summarily take the law into her own hands if the usual legal remedies afford her adequate protection. 72 In answering the question: ‘Was the defensive act necessary?’, it is again essential that the courts take cognisance of all the relevant contextual factors that characterise the circumstances of the accused. These include a history of the abuse and the accused’s fear of the abuser; the accused’s emotional and/or financial dependence on her partner; her age and the availability of economic and emotional support; the faith and religious beliefs of the accused; her race, ethnicity, culture, and class; her fear for her children; the existence of mental or physical disabilities; and any indication of substance abuse by the abuser or a Snyman above n21 at 107.

See above n52 at 186 Above n8 at 157.

Snyman above n21 at 107.

criminal record. 73 However, a caution is noted with regard to making a purely objective assessment of the accused’s circumstances, as such an evaluation could lend itself to a finding that the average person would have had adequate opportunity to remove herself from the harmful environment. 74 The research indicates that women in violent and abusive relationships are rarely free to leave the relationship at their will. 75 This reality must also be reflected in the court’s interpretation of the position of the accused and the assessment of whether self defence was necessary. 76 Sebok notes that in understanding the context of the battered woman’s homicidal act, one has also to consider the options available to her. 77 Firstly, could the accused have stopped the aggressor with less than lethal force?; secondly, could the accused have used the legal and criminal justice options?; and thirdly, could the accused have fled the scene of aggression without retaliating to the threat of harm. 78 Prosecutors often raise this last issue to show the unreasonableness of the accused’s conduct. Sebok explains that if flight were possible and if it were reasonable for the accused to believe that fleeing were possible, not overly burdensome, and would stop the S Buel ‘Effective Assistance of Counsel for Battered Women Defendants: A Normative Construct’ 2003 26 Harvard Women’s Law Journal 217, at 279. See also Stubbs and Tolmie ‘Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome’ 1999 23 Melbourne University Law Review 709, at 746. See also Chapters Two and Three.

The relevance of the testimony of the expert witness is also apposite in this regard for the expert will be able to assist the court to make an informed situational analysis of the circumstances of the accused and to understand and appreciate her lived reality.

See Chapter Three It is respectfully submitted that the rigid application of the rule in Mnguni 1966 3 SA 776 T does not incline itself to a fair application of the law in cases involving domestic abuse and violent relationships. See rather the statement on the law by Snyman who comments that it is not feasible to formulate the relationship which must exist between the attack and the defence in precise,

Abstract

terms. According to him, the furthest that one is entitled to generalise, is to require that there should be a reasonable relationship between the attack and the defensive act, in the light of the particular circumstances in which the events take place.: Snyman above n21 at 109-111. See also Trainor v The State [2003] 1 All SA 435 (SCA), at 439 where the statement of the law by Snyman was approved.

AJ Sebok ‘Does An Objective Theory of Self-Defense Demand Too Much?’ 1996 57 University of Pittsburgh Law Review 725, at 728.

Ibid.

aggressor (now the deceased), then the accused has no right to claim selfdefence. 79 Snyman states similarly:

A question which has often arisen … is whether a person who is attacked must flee, if at all possible, in order to ward off the attack. Although the courts have not yet unequivocally decided that there is a duty to flee in the circumstances, it would nevertheless seem as if they do in principle recognise such a duty. 80 However, Snyman’s own view on the subject is that under the South African law there is no duty to retreat or flee from an attack or the environment of harm especially where the harmful environment is one’s home. 81 The courts must be watchful not to introduce the duty to retreat in cases involving domestic abuse simply because they do not understand the experience of the victim of domestic violence. In evaluating the defence in this situation, the relevant questions are (i) whether, at the moment of the killing, it was reasonable for the accused to believe that the abuser would inflict grievous or deadly injury and (ii) whether it was reasonable for her to believe that flight was impossible or overly burdensome, or would not prevent the envisaged harm. 82 The test is thus not whether it was physically possible for the accused to flee, but whether it was reasonable for the accused to fail to flee. In cases of abused women, research indicates that there are numerous reasons why flight would not provide her with permanent respite.



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