«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»
Abbey and Psychiatric Opinion Evidence: Requiring the Accused to Testify’ 1984 17 Ottawa Law Review 116, at 129. Wardle continues with his proposition noting that ‘we may have to conclude that the [psychiatric expert] will not usually be fooled. The psychiatrist has more than just his experience with people against which to measure the accused’s statements …’: at 129. For a fuller discussion of Wardle’s view, see above Chapter Six. However, Grant, sounds a significant note of caution about the implications of hearing the experiences of battered women through the words of the experts, particularly psychiatrists, rather that the words of the woman. She argues that such an approach tends to reinforce the medical nature of the problem and has the potential to medicalise the woman’s experience of domestic violence.: I Grant ‘The “Syndromization” of Women’s Experiences’ 1991 25 U.B.C. Law Review 51, at 51. Using the example of the legal trend in the U.S.A. Grant continues to note that in many American cases ‘the focus has been on expert testimony describing the passive, victimized aspects of the woman, her “learned helplessness”, rather than on the circumstances which might explain the homicide as a necessary choice to save her own life.’: at 54.
domestic homicide is that given the seriousness of the alleged offence and the penalty that the accused risks and in many instances, the complexity of the case, the parties should regard retaining experts in preparation for trial as an imperative necessary to fulfil the Constitutional requirement of the accused’s right to a fair trial. 132 In many instances, the expert is appointed specifically to give evidence in court – and this is often because of financial constraints attendant upon using an expert for longer periods of time. However, proper pre-trail preparation will limit contestations in the courtroom between the expert witness for the prosecution and the expert witness for the state. This, in turn, will minimise the greater confusion that may be created by differing expert views and enable the expert witnesses to fulfil their role of assisting the court. 133
In South Africa, the law of self-defence is well-defined. However, the issue demanding a response in the context of the battered woman accused of murder is: Does the law in its current formulation and application respond to ‘developments in the community’s perception of justice or equity or the legal convictions of the community’? 134 The short answer is “no” but, it is submitted, the conditions constituting the definition of the law of self-defence (i) read with the proposed re-modelling and (ii) applied to the construct of the lived reality of victims of domestic violence, can provide justice and fairness in cases of battered women who kill their abusers and claim self-defence. This conclusion is See above n123 at 44.
As Meintjies-Van der Walt points out, ‘The dilemma of conflicting expert opinions has in South Africa resulted in courts being unable to rely on expert evidence.’: L Meintjies-Van der Walt ‘Decision-makers’ Dilemma: Evaluating Expert Evidence’ 2000 13 SACJ 319, at 320-1.
This problem is not novel to South Africa. Meintjies-Van der Walt points out in a separate publication that in bias in favour of the party by whom the witness is employed ‘has through the ages been the most frequent judicial criticism levelled against expert witnesses.’: L Meintjies-Van der Walt ‘Cross-examination of Expert Evidence’ 2001 396 De Rebus 22, at 24. In support of this statement she cites an Australian survey in which over a quarter of the Australian judges reported that they had encountered bias in expert evidence ‘often’ and two-thirds stated that they had ‘occasionally’ encountered bias on the part of experts.: L Meintjies-Van der Walt ‘CrossExamination of Expert Evidence’ n130 at 24. Meintjies-Van der Walt comments that this problem is overcome in some inquisitorial systems where experts are expected to solve disagreements among themselves, …’: L Meintjies-Van der Walt ‘Decision-makers’ Dilemma: Evaluating Expert Evidence’ above n130 at 321.
Above n8 at 54.
supported by Snyman who is in favour of broadening the field of application of self-defence in certain circumstances. 135
Labuschagne also proposes that:
Against the principle of legality as contained in section 35(1)(1) of the South African Constitution our courts can for the sake of justice, and meaningful sentences and in preventing an abuse of the criminal law … widen the current definition of self-defence. 136 Thus, it is submitted, the proposals for a reasonable, flexible application of the conditions of self-defence as set out in the preceding Chapters generally and in this Chapter specifically respond to the call made by Satchwell, Snyman and Labuschagne. Insofar as the battered woman facing a charge of murder is concerned, the conditions of self-defence - as revised - will be more responsive to the averments that the accused might have reasonably perceived the danger, that it was rational for the accused to feel the threat of imminent danger when she acted despite that fact that her abuser may have been incapacitated at the time, that it was necessary for her to use a deadly weapon under circumstances in which a man or non-battered woman might not, and that her actions are reasonable and not hysterical and inappropriate. Whether or not the accused acted in self-defence must remain an objective assessment tempered to take cognisance of the circumstances and experiences of the accused. Lastly, courts must recognise the value of expert witnesses in cases involving battered women.
The untutored mind will find it difficult to assimilate why the defendant would have remained in the violent relationship and never sought assistance, may be keener to accept the myth that the accused remained in the relationship either because the violence was not as severe as she later claims or because she actually Above n21 at 102.
[my translation] Labuschagne above n16 at 57. Schuller et al also take the view that with reference to the law of self-defence in Canada and Australia, the focus is not on the inadequacies of the law: rather, the focus of the courts has been to take notice when assessing ‘necessity’ of the ‘allegedly different perceptions of battered women’ (as opposed to the inadequacies of the existing self-defence laws for battered women’s experience).: RA Schuller, BM McKimmie and T Janz ‘The Impact of Expert Testimony in Trials of Battered Women Who Kill’ 2004 2 Psychiatry, Psychology and Law 1, at 2. However, as stated previously by the writer, this approach has no place in the South African law of self-defence.
enjoyed the violence, and could be sceptical of the assertion that the accused was too afraid to leave or that she did not recognise the relationship as an abusive one. The expert will explain the dynamics and effects of battery on a victim of abuse and negate the myths and stereotypes and assist the court to regard that accused as a reasonable, rational person.
Noteworthy regarding the aforementioned set of recommendations is the fact that the proposals made are not only relevant to women in situations of domestic violence – the writer suggests that the principles set out would be equally applicable in any case involving an accused charged with murder where there was evidence of prior abuse or an ongoing threat of violence. The proposals in this Chapter emphasise the accused’s background and circumstances, including experiences of abuse, if any, and the impact they may have had on the accused’s belief at the time of the alleged criminal act (particularly, the belief that there was an imminent risk of serious bodily injury or death and the belief that retaliatory force was necessary). Likewise, many of the factors will also be relevant in assessing the reasonableness of the beliefs in a manner that ensures that the law responds to the community’s perception of justice or equity or the legal convictions of the community. 137 See also Self Defence Review Final Report July 11, 1997 – modified 4 April 2008 – submitted to the Minister of Justice of Canada and Solicitor General of Canada http://www.justice.gc.ca/eng/dept-min/pub/sdr-eld/2.html 3.
BIBLIOGRAPHYLegislation Australia Commonwealth Criminal Code Act 1995 Crimes Act 1900 (NSW).
Crimes Act 1958 (Vic).
Criminal Code 1899 (Qld).
Criminal Code 1913 (WA).
Criminal Code 1924 (Tas).
Criminal Code Act 1983 (NT) Criminal Code (NT) Amendment Act 27 of 2001 Criminal Law Consolidation Act (SA) 1935.
Criminal Law Consolidation (Self Defence) Amendment Act (SA) 1987.