The Battered Woman and South African Law
3. Introduction
3.6 Diminished responsibility .1 Introduction
3.6.4 Conclusion
Given the current ideal model of self-defence, it is clear that attention has to be drawn to its inequitable application to women who kill to defend themselves. In the absence of challenges to the common assumptions about when force is necessary in response to actual or threatened violence, and about the level of force which a woman might reasonably use against an unarmed abuser, such women will be unable to successfully plead self-defence.
The development of self-defence in English law clearly illustrates this trend. In the case of battered women, a plea of self-defence is only available if the force used by the women is reasonable and necessary to protect them from an imminent attack. It is, therefore, not available to an abused woman who fears violence in the future and kills her abuser, when for example, he is asleep or has his back turned to her.749 It is submitted that an abuser should not be allowed to benefit from the law of self-defence by making the
748 Mackay supra (n 747) 417. The Law Commission’s final recommendation for a defence of diminished responsibility was held as follows: “A person, who would otherwise be guilty of murder, is not guilty of murder but of manslaughter if, at the time of the act or omission causing death, (1) that person’s capacity to: (a)understand events; or (b) judge whether his actions were right or wrong;
or (c) control himself, was substantially impaired by an abnormality of mental functioning arising from an underlying condition and (2) the abnormality was a significant cause of the accused’s conduct in carrying out or taking part in the killing. “Underlying condition” was defined as meaning a pre-existing mental or physiological condition other than of a transitory kind (at par 5.47).
749For a discussion of the imminence requirement in self-defence see 117-120.
battered women wait until she is being attacked before engaging in physical resistance. A strict view of imminence, then should not on the authority of Palmer,750 cause an
“otherwise arguable plea of self-defence to be jettisoned where there is no realistic alternative open to the abused woman.” 751
The concepts of proportionality and necessity, through which reasonableness is to be judged have also developed at common law largely through cases involving male accused. The jury will of necessity focus on an idealized model of what is reasonable and assess the accused’s conduct against such a standard. The relative scarcity of female killers has resulted in a paradigmatically male ideal model and this together with the incompatibility of aggressive force with stereotypical feminity, means that the apparently gender-neutral concept of reasonableness is actually prejudicial to the battered woman.752 For example, to assess if the battered woman’s use of force is reasonable, the court will need to establish if the use of force was necessary.753 Where an abused woman kills her abuser during the course of an attack by him, it is likely that her only alternatives to the use of force would consist of submission or flight.754 While the law does not require the abused women to flee her home,it would appear that failure to notify law enforcement authorities would indeed count against her at a trial.
The law also does not take into account the fact that abusers tend to retaliate when law enforcement authorities are involved or where the abused woman leaves the home, the abuser tends to track her down and bring her home. Without investigating the
750Palmer supra (n 531).
751McColgan supra (n 39) 519.
752McColgan supra (n 39) 516.
753For a discussion of the requirement of reasonableness see 116-118.
754For a discussion of the duty to retreat see 120-122.
psychological aspects of battered woman syndrome, it is clear that viewed from the woman’s perspective her use of force, even if considered excessive, might be the only way to escape an escalating spiral of violence, which she believes will eventually end in her death.755 The proportionality requirement, which has developed through cases concerning male accused, and is generally taken to demand parity between the attack and defence and which is unfair were the attacker is male and the defender is female, it is clear that where the force used is judged to be excessive in relation to the harm threatened, neither section 3 of the Criminal Law Act 1967 nor the common law will assist her and she’s liable to be convicted of murder.756 However, the harshness of this rule is mitigated in practice by the recognition that a person defending herself “cannot weigh to a nicety the exact measure of her necessary defensive action.” 757
The application of self-defence too many abused women who kill does not involve any alteration or extension of the defence, rather a rethinking of the way in which the requirement that the accused’s use of force be reasonable is applied to cases other than those involving the traditional model of a once off adversarial encounter between strangers. Self-defence is regarded as a justificatory defence, and it is this aspect of it perhaps which underlies the unease which is expressed about its application in cases other than those in which it has traditionally been accepted.758
In terms of English common law, judges used to rule as a matter of law on the question of what could amount to provocation. The relevant conduct needed to be inherently
755McColgan supra (n 39) 517.
756McColgan supra (n 39) 520.
757Palmer supra (n 531) 1078.
758McColgan supra (n 39) 521.
objectionable.759 In terms of section 3 of the Homicide Act 1957, there is no limit as to what conduct could constitute provocation.760 Therefore, any legitimate conduct such as a baby crying, could be treated as provocation. This would remove the possible justification for allowing the defence. Further, the defence encourages a culture of blaming murder victims for their own deaths. Where the issue of provocation is raised, a trial risks focusing on the accused’s behaviour rather than the deceased’s conduct. 761
Women are more likely to kill their abusers as a result of the abuse they suffered. In the past provocation would not be available to abused women since there is often a time gap between the last provocative act of the victim and the killing. The case of Ahluwalia 762 was adapted to take into account the time delay. Despite these legal developments, the defence of provocation may still not be available to abused women, since they may not have reacted under the requisite loss of self-control. Instead, the killing may have been planned and deliberate. 763
The objective test for provocation requires that a reasonable person would also have lost her self-control and killed in reaction to the provocation. This test seeks to impose a requirement that, even under provocation, the accused’s conduct should not have fallen below a minimum standard expected in society.764 The problem with this test is that in today’s society, a reasonable person never kills.765 Therefore, if a strictly
759For a discussion of the English common law see 127-131.
760For a discussion of section 3 of the Homicide Act 1957, see 130.
761Elliot supra (n 53) 255.
762Ahluwalia supra (n 602).
763For a discussion of the requirement of loss of self-control, see 131-135.
764For a discussion of the objective test of provocation see 135-144.
765Elliot supra (n 53) 257.
objective test were to be applied, the defence would never be successful. For this reason the courts have watered down this objective standard, and will take into account certain of the accused’s characteristics when applying the reasonable person test. However, case law suggests that the courts have had difficulty in determining which characteristics to take into account. While the court in Smith (Morgan) 766 held that the jury is sovereign in determining which characteristics to take into account, this approach has not been strictly adhered to. The courts have vacillated between the objective and subjective approach. In Smith (Morgan) 767 the standard of self-control required to trigger the provocation defence is not a constant standard. The jury should apply the standard one could expect of the particular individual with her particular characteristics. Such a standard would be beneficial for battered women, but was not adhered to for long.768 In Luc Thiet Thuan, 769 the court adopted a constant, objective standard of self-control. The jury must ask themselves whether a reasonable person, with ordinary powers of self-control and subject to the same provocation, would have reacted as the accused did.770 In Holley,771 the court again changed its mind a decided to return to an objective standard of self-control as expounded in Luc Thiet Thuan.772 The application of provocation must be considered in the context of diminished
766Smith (Morgan) supra (n 40). The Law Commission Consultation Paper No. 173, 2003 at par 4.150 held that the effect of this decision was to substantially lower the threshold of self-control and that leaving the decision to the essentially subjective judgment of individual jurors is wrong since it is likely to lead to idiosyncratic and inconsistent decisions.
767Smith (Morgan) supra (n 40). For a discussion of this case see 144-147.
768This would not, however, be based on sound policy reasons. In this regard see Heaton’s criticism of the provocation defence at n 659.
769Luc Thiet Thuan supra (n 643).
770For a discussion of this case see 143-144.
771Holley supra (n 678).
772Luc Thiet Thuan supra (n 643).
responsibility. One should not distort the other.773 However, this standard remains problematic in that juries must still grapple with the distinction between subjectivity and objectivity.774 If nothing else, this case is a reminder that the law relating to provocation is flawed to an extent beyond reform by the courts. It would appear that the retreat to objectivity in Holley 775 will remain the orthodox approach, at least until the government completes its review of the law relating to provocation.776
Diminished responsibility may provide the legal basis for dealing with cases of cumulative provocation that cannot be treated under the provocation defence. Where the accused has been subjected to a long period of abuse, she may claim that she was experiencing such distress or depression so as to substantially diminish her capacity for self-control, and therefore her moral responsibility for her actions.777 Pleading diminished responsibility in such a case would seem more appropriate where no final provocative incident occurred immediately prior to the killing, or where the battered woman’s retaliation was preceded by planning and deliberation. The same approach could be adopted where the conduct that triggered the abused women’s fatal response is not regarded as being capable of amounting to provocation (i.e. on the basis of the objective test as it applies to the circumstances of cumulative provocation). In this case the circumstances of cumulative provocation may provide a sufficient basis for supporting a plea of diminished responsibility. This is so even in cases where there is no clear evidence of an abnormality of mind.778
773Holley supra (n 678). For a discussion of this case see 154-156.
774Martin supra (n 659) 1364.
775Holley supra (n 678).
776Martin supra (n 659) 1364.
777Mousourakis supra (n 544) 170.
778Ibid.
However, such cases can put a strain on the law of diminished responsibility since strictly speaking, the requirements for the defence are not satisfied. The Law Commission notes that there appears to be some inconsistency in the willingness of psychiatrists to testify on the diagnosis of the accused’s mental health. Furthermore, some experts may not be comfortable with classifying as an “abnormality of mind”
what essentially may be ordinary reactions to highly stressful situations such as an abusive and violent relationship.779 Furthermore, labelling abused women as mentally ill also plays up to negative stereotypes by pathologizing a woman’s actions and implies that had her mental faculties not been impaired she would have continued to be a “happy punch bag.” There is also a further problem that if the accused is robust, she is less likely to succeed on a defence of diminished responsibility.780
779Elliot supra (n 53) 258, noting the Law Commission’s Consultation Paper No. 173 of 2003 arguments at par 10.78.
780Elliot supra (n 53) 258, noting the Law Commission’s Consultation Paper No. 173 of 2003 arguments at par 10.77.
CHAPTER 4
THE BATTERED WOMAN AND AMERICAN LAW