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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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Many women who are subject to domestic violence have remarked that their abusers have often threatened them that they would be unsafe anywhere in the community if they even attempted to leave and research has identified that these are not idle threats. 83 Thus, it may be argued that when assessing whether the defence was necessary, the courts must be cognisant of the fact that perceptions of reason differ and are influenced by the confluence of various factors reflecting the situational experiences of the accused. In reaching a final decision, the court Ibid.

Snyman above n21 at 108 and he cites as authority for this proposition Zikalala 1953 2 SA 568 A, at 571-2, Patel 1959 3 SA 121 A, at 123, Dougherty 2003 2 SACR 36 W, at 50 and above n76 at 779. (Note, however, that Snyman does not support the decision in Dougherty above.) Snyman above n21 at 108.

Ibid.

See Chapters Two and Three.

must always place itself completely in the shoes of the accused. 84 However, it is stressed that support for her conduct must come from the woman herself, in her spontaneous, self-initiated description of the events that preceded her action against the abuser. 85 8.2.4 There Must Be A Reasonable Relationship Between the Attack and the Defensive Act In terms of the South African law ‘a certain balance’ between the defensive act and the original attack is required. 86 However, proportionality in respect of (i) the nature of the interest threatened and the interest impaired; or (ii) the means used by the attacker and the attacked party; or (iii) the value or extent of the injury threatened by the attacking party and that inflicted by the defender, is not required. 87 In applying this rule, cognisance should be taken of how the accused interpreted the situation. It is submitted that the approach of the Australian law which looks to an understanding of the mental processes affecting the mind of the accused at the time of the incident, 88 is especially apposite and relevant.

Factors which could be taken into consideration involve balancing (i) the behaviour of the alleged attacker, (ii) the dangerousness of the situation, and (iii) the resources available to the claimant, for responding to that threat. 89 Furthermore, the comparative size, strength and fighting skills of the abusing partner and victim are always relevant when coming to an objective determination of the existence of a threat. Crocker notes that women’s lack of self-defence training, coupled with socialisation processes that decry aggression by women, may also mean that women perceive danger differently, sooner and more frequently than men. 90 Consequently, if the woman is to mount a real defence, Although there is a growing awareness of domestic violence and the dynamics of battery, expert evidence should be presented to assist in placing the court ‘in the shoes of the accused’.

J Blackman ‘Potential Uses for Expert Testimony: Ideas Toward the Representation of Battered Women Who Kill’ 1986 9 Women’s Rights Law Reporter 227, at 236.

Snyman above n21 at 109.

Snyman above n21 at 109-111.

Buel above n73 at 278.

See RJ Patterson and RWJ Neufeld ‘Clear Danger: Situational Determinants of the Appraisal of Threat’ 1987 101 Psychological Bulletin 404, at 416.

Above n14 at 127.

she will, more often than not, have to resort to the use of weapons in protecting herself.

This fact needs to be acknowledged especially when dealing with the so-called non-confrontation self-defence cases. Evidence should be offered to enable the court to consider the woman’s conduct as reasonable, rather than hysterical, irrational or insane. 91 Under the law, what is reasonable is often determined by the perceptions, beliefs and understanding of the court. In this regard, FioraGormally notes that battered women who approach the court for redress are often required to deal with a system that mirrors the male-dominated, maleorientated legacy of our social past. 92 In assessing the reasonableness of the conduct of the accused against the attack from the victim, the courts in all the studied jurisdictions have taken account of the circumstances and experiences (‘social framework evidence’ 93) of the accused for, as Crocker suggests, ‘a battered woman should not have to be judged under a standard that did not include her experience.’ 94 Furthermore, the fact that the abused victim knows her aggressor intimately must make a difference – knowledge of her abuser’s prior conduct will usually enable a victim of domestic violence to measure the force necessary for self-defence on subsequent occasions. Snyman also confirms that under the South African law the reasonableness of the relationship between the attack and the subsequent defence will be a factual determination that should be judged casuistically in light of the circumstances in which the events took place. 95 In light of the above, the writer makes no proposal for any amendment to the South African law in this regard. It is the writer’s view that a flexible application of the requirements of selfdefence (which takes proper notice of the circumstances and lived realities of the accused) will equitably accommodate a battered woman charged with killing an abusive partner.

Above n14 at 130.

N Fiora-Gormally ‘Battered Wives Who Kill: Double Standard Out of Court, Single Standard In?’ 1978 2 Law And Human Behaviour 133, at 164.





Stubbs and Tolmie above n73 at 711.

Above n14 at 131.

Snyman above n21 at 109.

8.3 THE TEST FOR SELF-DEFENCE ‘Would a Reasonable Person in the Circumstances of the Accused have so Acted?’ 96 8.3.1 ‘A Reasonable Person’ The research indicates that in identifying a standard for reasonableness in cases involving domestic violence, three options have presented themselves namely (i) to base the test in an enquiry as to whether the accused meets the standard of the battered woman syndrome as defined by Walker; (ii) to individualise the test to the extent of comparing the accused to a reasonable battered woman; or (iii) to evaluate the conduct of the accused against that of the reasonable woman (as opposed to reasonable person. The standard of the reasonable person has not commended itself to any of the authorities.)

8.3.1.1 The Battered Woman Syndrome

In the U.S.A., Canada and Australia the courts have adopted a narrow interpretation when dealing with cases involving domestic violence specifically referring to the battered woman syndrome as a mechanism through which to introduce evidence about intimate violence and its effects. 97 However, it is noteworthy that in all three jurisdictions, despite the courts adhering to the marker of battered woman syndrome as the character of all battered women, they have not implemented battered woman syndrome as a separate defence: Rather, the courts have applied the characterising traits of battered woman syndrome to Snyman above n21 at 113.

Wallace notes that the initial response of the feminist movement to get judges and legislatures to acknowledge the pandemic of intimate violence and to get them to recognize battered women’s actions as reasonable, was to fight for the recognition of battered woman syndrome.: above n47 at

1755. However, soon many of the same protagonists realised the fallacy of the plan for, whilst battered woman syndrome addressed the evidentiary issues, there were more fundamental practical problems being created for example, stereotyping of the victims and pathologising the problem.

Today the research shows that greater favour is attributed to the consideration of the effects of battering.

explain and understand the conduct of the accused within the conditions of the law of self-defence. 98 In South Africa in Engelbrecht the court took a wider approach when dealing with the issues of domestic violence, demonstrating (it is submitted) an acute awareness of the literature around the subject of battered woman syndrome and partner violence. In casu, the court made reference to the ‘effects of battery’ without pigeonholing the accused into the straitjacket of the battered woman syndrome. It is submitted that Engelbrecht has provided a sound platform for the law and it is recommended that the South African courts, when confronted with cases involving domestic violence, continue to consider ‘the nature and effects of battery’ - as opposed to battered woman syndrome - when dealing with such cases. This is not intended to suggest that battered woman syndrome should never be introduced to the courts. However, what is proposed is that it not be viewed as the standard for all battered women.

Thus, in order to properly utilise the knowledge of the expert and gain optimal value, the expert’s role should be focussed on providing an understanding of the nature, effects and dynamics of battery. It is not the function of the expert to attempt to shoehorn all accused victims into the stereotype of a battered woman according to the battered woman syndrome described by Walker. In this regard the writer agrees with Posch that gender inequality is a main factor in violence against women and, therefore society should understand battered woman syndrome as the gender issue that it is and not as a psychological classification in which women are viewed as weak or needy. 99 Admittedly, the South African courts have not yet had to specifically consider the issue of battered woman syndrome as a separate defence. However, it is For a fuller discussion, see Chapter Five, Chapter Six (specifically Lavallee above n50 at 126 and Malott [1998] 1 S.C.R. 123 at 140), and Chapter Seven (specifically Osland (1998) 159 ALR 170 at 243).

P Posch ‘The Negative Effects of Expert Testimony on the Battered Women’s Syndrome’ 1998 6 Journal of Gender and the Law 485, at 492.

See also M Reddi ‘Battered Woman Syndrome:

Some Reflections on the Utility of this “Syndrome” to South African Women Who Kill Their Abusers’ 2005 3 South African Journal of Criminal Justice 259, at 264; and A Pieterse-Spies ‘A South African Perspective on Battered Women Who Kill Their Abusive Partners’ 2006 69 THRHR 309, at 313.

submitted that when the issue arises (and it certainly will in the near future), the approach of the South African courts should be to follow the international trend of rejecting battered woman syndrome as a separate defence under the criminal law. The South African criminal law has an established set of defences and, it is submitted, the conduct of the battered woman can be brought and properly justified under the existing defences. There is no defensible argument that can be made for a separate defence called battered woman syndrome.

8.3.1.2 A Reasonable Battered Woman

It is submitted that the standard of the reasonable battered woman creates an individualised standard for battered women that can result in the perpetuation of stereotypes for battered women. As seen from the previous discussions, attempts to mould victims of abuse into a pre-determined set of character traits can often work against women who are victims of domestic violence but fail to fit the mould. 100 A single norm of the ‘reasonable battered woman’ cannot be recommended given the diversity of social, economic, personal, and maybe even psychological issues that impact on the life of a battered woman. Battered women are not a homogenous group of actors – rather they are individuals, each with their own lived realities. Burke confirms the importance of treating and judging the accused woman as a rational actor and determining the reasonableness of her conduct in light of her ‘objective individual circumstances’ and not from some ‘psychologically-individualized perspective.’ 101

8.3.1.3 A Reasonable Woman

To ensure that the proper weight is given to the circumstances of the accused, the standard against which the conduct of the battered woman must be judged is that of the reasonable woman in the social framework of the accused. 102 Endorsing the view expressed in Malott, Satchwell J recognised that women’s J Bosworth ‘The Trouble with Battered Women’s Syndrome’ 1996 11 Adelphia Law Journal 63 and DL Faigman and F Wright ‘The Battered Woman Syndrome in the Age of Science’ 1997 39 Arizona Law Review 67.

Above n62 at 218.

Above n8 at 136.

experiences in relation to self-defence may well be different to that of their male counterparts. 103 For example, gauging this aspect in relation to the specific condition of imminence, Crocker writes that given the socialization processes that many women experience, and their ‘lack of physical defense training’ and an environment that ‘equates femininity with weakness’ means that ‘women may perceive danger sooner and more frequently than men. 104 This re-enforces the notion that the perspectives of women must specifically inform the objective standard of reasonableness. 105 Acknowledging the argument of Kirby J in Osland for a ‘sex neutral standard’, 106 it is submitted that, as is evident from a reading of the literature and case law, when dealing with a battered woman, the test cannot be ‘what would provoke an ordinary reasonable person’ because, it is suggested, the latter would not have the subjective knowledge and awareness of the accused. Gillespie notes further that the reasonable person has been described as one who is not frightened or provoked to violence by mere threats;

does not use a weapon unless one is being used against him; and does not indulge himself in cowardly behaviour such as lying in ambush or sneaking up on an enemy unawares. 107 The reasonable person does not panic at what, in all likelihood, may be an idle threat from his adversary. ‘But,’ says Kampman, ‘the battered woman is painfully aware of just how willing her adversary’ is to carry out his threat.’108 In responding to whether the reasonable woman standard will not defeat the equality arguments, Crocker is categoric that ‘[w]e cannot pretend that a woman’s sex is irrelevant to or can be separated from her actions; nor can we pretend that

she is not part of a culturally defined group.’ 109 Boyle notes more emphatically:

Ibid.

Above n14 at 127.

Above n8 at 136.

Osland above n98 at 211-2.

CK Gillespie Justifiable Homicide – Battered Women, Self-Defense and the Law (Ohio State University Press, Columbus: 1989) 99.

ME Kampmann ‘The Legal Victimisation of Battered Women’ 1993 15 Women’s Rights Law Reporter 101, at 111.

Above n14 at 152.



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