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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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While gender is an inefficient proxy for other, more functional classifications, I do not think it will advance the cause of equality to pretend that human beings, or social problems, are gender neutral. 110 In seeking to provide a checklist of evidence that will set a competent yardstick for proving reasonableness in cases involving domestic violence and selfdefence, it is recommended that the enquiries raised by Stubbs and Tolmie be

used as a starting point. These questions include:

What was the nature and extent of the violence she suffered in the relationship?

How many times had she called the police and with what result?

How had she tried to enlist the protection of the criminal justice system or other agencies and what was the result?

How many times had she tried to leave?

If she returned, what were the factors that influenced her decision?

Did she have a safe and affordable place to go?

Was it reasonable to expect her to be the one to leave the family home?

How had he responded to her efforts to protect herself in the past?

Had he intimated what he might do to her in the future?

Was there anything about her cultural circumstances that made it particularly for her to detach from him, negotiate the relationship or seek outside help? 111 It is submitted that the answers to these questions will provide a strong basis from which to assess whether the requirement of reasonableness can be satisfied. Further, it is consciously reiterated that in understanding the experience and lived reality of the accused, the courts must strive for a proper understanding of the battered woman’s physical and social construct and the C Boyle ‘The Battered Wife Syndrome and Self-Defence: Lavallee V. R.’ 1990 9 Canadian Journal of Family Law 171, at 175.

Stubbs and Tolmie above n73 at 712 fn5. See also MA Dutton ‘Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome’ 1993 21 Hofstra Law Review 1191, at 1202.

history of her relationship with the abuser. 112 This is supported by Crocker who notes that neither the reasonable battered woman standard nor the reasonable person standard will achieve this intention. She argues further that, in fact, the battered woman stereotype is just as unacceptable as the reasonable man stereotype for, in both cases, whilst the court may enquire into the specific circumstances, perspectives and experiences of the accused, in both cases the courts also continue to perpetuate and rely upon stereotypes. 113 8.3.2 A Consideration of the ‘Circumstances of the Accused’ and the Need For and Role Of the Expert Witness

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Notwithstanding the growing awareness of the subject-content of domestic violence, it is submitted that the complete experience and circumstances of the victim remains beyond the comprehension of the lay person. Accordingly, it is suggested that there remains a compelling argument for the continued involvement of experts on the subject when a case is presented before the court.

First, and most importantly, expert evidence on the effects and dynamics of battery will explain not only the necessity for the accused’s conduct but also the reasonableness thereof. (It is certainly not proposed that the expert be allowed to usurp the function of the court in determining reasonableness but, it is submitted, the opinion of the expert may assist the court in reaching its decision.

Secondly, it is acknowledged that there are many reasons why a victim of domestic violence will remain in an abusive relationship. 114 In the courtroom, expert evidence will be vital to a proper understanding of why the victim would have stayed in the relationship and eventually resorted to the murder of her Snyman is clear that such an enquiry is acceptable under the South African law and in referring to the objective standard (albeit for negligence), he notes that ‘the objective character of the test is subject to particular qualifications or exceptions.’ One exception that he specifically defines is the rule that the reasonable person should be placed in the circumstances in which the accused found himself at the critical moment. This rule, states Snyman ‘amounts to a certain degree of individuation or subjectivity of the test.’: CR Snyman Criminal Law (Butterworths, Durban: 2002) 218.

Above n14 at 137.

These have been comprehensively canvassed above in Chapters Two and Three.

abusive partner. The expert will assist to dispel the myths and stereotypes that attach to domestic violence and battered women. Without the expert evidence, there is the real probability that the effects of domestic violence will pass without proper weight being given to the exigencies of the accused’s reality and the accused will have difficulties demonstrating the reasonableness of and the justification for her behaviour.

All the jurisdictions surveyed in this study have acknowledged the integral role of the expert in cases involving domestic violence. However, there is no unanimity as to the nature of the evidence that the expert should be allowed to present.

Some jurisdictions have allowed only general evidence on domestic violence;

whilst others have readily permitted case specific testimony and even allowed the expert to link the conduct of the accused with the dynamics of battery, as agreed by the experts in the field. 115 Further, specific jurisdictions have permitted the expert to present an opinion on the issues for decision. With regard to the latter, the courts in Canada have been adamant that such evidence is not admissible;

the academic writers and the courts in the U.S.A. do not have a unanimous understanding of the law, but the Australian High Court in Osland took a firm view and allowed the expert to express himself directly on the issue of reasonableness. The South African law has also been generally responsive to allowing an expert to present an opinion on the ultimate issue for decision for as the court held in Mngomezulu ‘… there can be no objection to the witness expressing an opinion on the facts in issue if this is done to assist the court.’ 116 Significantly, however, in Engelbrecht Satchwell J was adamant that the expert should not be permitted to decide the issue of the reasonableness of the conduct of the accused ‘as this was the function of the court.’ 117 It is submitted that the

approach in Engelbrecht is unnecessarily restrictive and should not be followed:

rather, the approach in Mngomezulu and Ruto Flour Mills (1) v Adelson is supported namely, that where the opinion of the expert would be of ‘appreciable See Chapters Four, Five, Six, and Seven. This approach was clearly followed in both Ferreira (above n42) and Engelbrecht (above n8), the two South African cases dealing with domestic violence, murder and self-defence.

Mngomezulu 1972 1 SA 797 A, at 799. See also Ruto Flour Mills (1) v Adelson (1) 1958 4 SA 235 T, at 237.

Above n8 at 56. See also Mngomezulu above n114 and Ruto Flour Mills (1) v Adelson above n114.

assistance’ in aiding the court to reach a conclusion on the issue of reasonableness, that opinion should be received by the court. 118 It will then still be the function of the court to exercise its discretion on whether or not to accept the opinion presented by the expert 119 - and reach its own conclusion on reasonableness based on the evidence before it. 120 Specifically regarding the experts being permitted to express an opinion on the reasonableness of the accused’s conduct, it is further submitted that given that objective reasonableness is still determined by having regard to the circumstances of the accused, the remark of Wilson J in Lavallee namely, that fairness and the integrity of the trial process demands that the court have the opportunity to hear the views of the expert is appropriate in summing up the argument. 121 McColgan also reinforces the view that expert evidence is very relevant to a determination of the reasonableness of the conduct of the accused for, she states, ‘the relative scarcity of female killers has resulted in a paradigmatically male idea model and this, together with the incompatibility of aggressive force with stereotypical femininity, means that the apparently gender neutral concept of reasonableness is actually weighted against the female defendant.’ 122 Becker concurs noting that a factor aggravating the crime when a

battered woman kills her partner is that:

[n]ot only does a battered woman on trial for killing her abusive spouse face this historic acceptance of wife-beating by the legal system, she also confronts the social stereotypes of womanhood that may be held by the judge. … A woman who commits a violent act against her husband threatens the [decision-maker’s] sense of order and security because, by destroying the family unit, she repudiates her natural role as a caring, nurturing mother/wife. Furthermore, the [decision-maker’s] own See Mngomezulu above n154 and Ruto Flour Mills v Adelson (1) above n149.

See above n92 at 99-100.

See Chapter Four fn180.

Lavallee above n50 at 126.

A McColgan Women Under the Law: The False Promise of Human Rights (Longman, Essex :

2000) 202. This was specifically recognised in Lavallee (above n50) by Chief Justice Dickson in admitting expert evidence to counter the commonly held beliefs that battered women are not really beaten as badly as they claim, otherwise they would have left the relationship; or that women enjoy being beaten, that they have a masochistic strain to them.

conceptions of the family as a safe, healthy environment may lead them to deny the existence of violence altogether. Rather than believe the woman, the [decision-makers will] choose to believe their own stereotype. 123 As Stubbs and Tolmie note, the role of the expert is to offer ‘broad social framework evidence to provide the context within which to understand the issues in a given case.’ 124 In this way, the expert may support the accused’s claim that

she acted reasonably. They note further:

Such evidence is not so much directed at the question “was the accused a battered woman?” and “did she suffer from learned helplessness?” but rather, “what was the nature of the threat she faced?”. 125 Lastly, given the experience of the expert – as defined by Conrad 126 - there is much to commend an approach that will allow the expert to present an opinion on the issue for decision. The ultimate pronouncement will, however, remain with the court, which may choose to reject the opinion of the expert. 127 Another controversial issue which emerges is the admissibility of expert opinion in cases where the accused has not testified. In Lavallee the prosecution argued that the opinion of the expert would be of no value in such cases as there was no basis upon which to peg the information presented. 128 The court, however, agreed to admit the evidence but held that the independence of proof upon which the opinion is based will affect the weight that the court will give to the D Bricker ‘Fatal Defense: An Analysis of Battered Woman’s Syndrome Expert Testimony for Gay Men and Lesbians Who Kill Abusive Partners’ 1993 58 Brooklyn Law Review 1379, at 1402.

Stubbs and Tolmie above n73 at 711.

Stubbs and Tolmie above n73 at 712.

AF Conrad ‘The Use of Victim Advocates and Expert Witnesses in Battered Women Cases’ 2001 30 The Colorado Lawyer 43, at 47.

PJ Schwikkard, A St Q Skeen and SE van der Merwe Principles of Evidence (Juta and Co., Lansdowne: 2001) 81. Under the South African law of evidence, the expert may give an opinion but he or she is also required to provide the grounds for the opinion presented. The court can then decide objectively whether or not to accept the opinion. See also Nieuwoudt 1990 4 SA 217 A, at 238.

Above n50 at 104.

testimony. 129 This approach is clearly reflected in the South African law of evidence 130 and was followed in Ferreira. 131 On a more practical note, it is submitted that admitting expert evidence at the trial is only the first step. The second issue is for the judicial officers to be open to acknowledging the opinions presented by the experts. Magistrates and judges (despite their office) are ordinary members of society and, as such, have their personal views on the subject of domestic violence. It is not impossible for entrenched misconceptions to find their way into the courtroom. Given the acknowledgment that domestic violence is an endemic problem in South Africa, lawyers should be aware of the effects and dynamics of domestic violence. This will not derogate from the need for expert testimony in cases involving domestic violence: it will simply provide a stronger platform from which the expert will be able to operate.

In conclusion to the issues raised and recommendations submitted in respect of expert evidence in cases involving intimate homicide against a setting of domestic violence, a proposal that may be generally relevant in cases of See above n50 at 132-3.

CWH Schmidt and DT Zeffert Evidence (Butterworths, Durban: 1997) 32-3; and Schwikkard, Skeen and Van der Merwe above n122 at 89-90. See also M 1991 1 SACR 91 T.

Above n42. In supporting the view that the expert, particularly a psychiatrist, should be permitted to testify even though the accused may not have, Wardle also notes that ‘the psychiatrist has an ability to separate truth from fiction that should be taken into account by the rules of evidence.

On a very basic level, this argument really amounts to a suggestion that the psychiatrist’s experiences in dealing with people should be acknowledged.’: P Wardle ‘R. v.

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