The Battered Woman and South African Law
3. Introduction
3.6 Diminished responsibility .1 Introduction
3.6.2 Development of the defence
The defence of diminished responsibility is provided for by section 2 of the Homicide Act 1957. According to section 2:
“(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if she was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired her mental responsibility for her acts and omissions in doing or being party to the killing.”
The accused is required in terms of section 2(2) to prove diminished responsibility 719 on the balance of probabilities.720 If successful, the accused will be convicted of
717Ibid.
718McColgan supra (n 39) 513.
719 Mousourakis supra (n 544) at 164 notes that this defence was introduced in response to the recommendation of the Royal Commission on Capital Punishment for a broader insanity defence. Cf Cmnd 88932, 1949-1952.
720R v Dunbar [1958] 1 QB 1; R v Ahmed Din (1962) 46 Cr App Rep 269; R v Bathurst [1968] 2 QB 99; R v Vinagre (1979) 69 Cr App Rep 104; Bradshaw v R (1985) 82 Cr App Rep 79, [1985] Crim LR 733.
manslaughter.721 The Law Commission 722 noted that the main rationale which underlies the body of opinion favouring retention of diminished responsibility defence (even if the mandatory life sentence were to be abolished) is “fair and just labelling.” The Law Commission expressed the view that it is unjust to label as murderers those who are not fully responsible for their actions. The Commission made reference to the stigma which attaches to a conviction for murder, which is considered the most serious of all crimes.
The reason why it is unjust is that the accused’s culpability is diminished.723 There is a clear moral distinction between murder and diminished responsibility killing, despite the presence of mens rea of the former offence. The Law Commission acknowledged that what was required is a new plea which appropriately reflects this moral distinction.724
In terms of section 2 of the Homicide Act 1957, it must first be proved that at the time of the killing, the accused suffered from an abnormality of mind. In Byrne 725 Lord
721Mousourakis supra (n 544) at 166 notes that medical evidence must be submitted to support the claim that the accused was in fact suffering from an abnormality of mind arising from one of the causes specified in section 2(1) of the Homicide Act 1957. Cf Dix v R (1981) 74 Cr App R 306.
722Law Commission Consultation Paper No. 290 of 2004.
723 Ibid at par 5.18. Such a rational merits two comments. (1) Firstly, reference to culpability is problematic since English law has traditionally employed the concept of mens rea (in conjunction with actus reus) and in particular the distinction between intention and subjective recklessness, as a means of assessing culpability and labelling conduct. Murder stands at the apex of offences of physical violence because of the requirement of intent attached to actus reus of unlawful killing.
Partial defences represent an exception to the general approach since they only come into operation if a jury is satisfied that the accused committed the conduct element and had the mens rea of murder.
Therefore, such partial defences are anomalous and owe their existence solely to the mandatory sentencing regimes, which have always existed for murder (at par 5.19).
724Law Commission Consultation Paper No. 290 of 2004 at 5.20. Furthermore, the Law Commission noted at 5.22 that the defence may enable a merciful but just disposition of certain types of cases where all parties consider it meets the justice of the case.
725Byrne supra (n 68). In this case the accused killed a young woman and then mutilated her body.
Medical evidence showed that he suffered from sexual urges which he found extremely difficult to resist, and furthermore that he had committed the killing while under the influence of such urges.
Despite evidence that the accused knew what he was doing and that he was fully ware of the wrongful nature of his actions, the Court of Criminal Appeal quashed his conviction for murder and instead found him guilty of manslaughter.
Parker CJ defined the term abnormality of mind as follows:
“ ‘Abnormality of mind’, which has to be contrasted with the time-honoured expression in the M’Naughten Rules, ‘defect of reason’, means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to for a rational judgment whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgment.” 726
In Byrne,727 the court accepted that the accused’s condition was correctly described as
“partial insanity” or “a condition bordering on insanity.” 728 Mackay notes that the court’s dictum had a profound effect on the development of the defence of diminished responsibility:
“(by) allowing psychiatric evidence of sexual psychopathy to be admitted as a form of abnormality of mind, the concept of irresistible impulse was introduced into English law.
726Byrne supra (n 68) at 403. Griew “The Future of Diminished Responsibility” [1988] Criminal Law Review 75 at 82 notes that for the defence of diminished responsibility to be accepted: “the accused had to have an abnormality of mind (of appropriate origin). This had a substantial effect upon one or more relevant functions or capacities (of perception, understanding, judgment, feeling, control). In the context of the case this justifies the view that her culpability is substantially reduced. Her liability is on that account to be diminished. More shortly: her abnormality of mind is of such consequence in the context of this offence that her legal liability for it ought to be reduced.”
Furthermore, the Law Commission Consultation Paper No. 290 of 2004 at 5.22 took cognizance of the out-dated nature of the insanity defence as contained in the M’Naghten Rules. The narrowness of the rules, in the sense of their preoccupation with cognitive understanding, is seen to be reinforcing the need for a partial defence of diminished responsibility. In addition the stigma which attaches to being labeled insane makes the accused reluctant to plead insanity. In this respect Nicolson and Sanghvi supra (n 641) at 734 note: “But even if battered woman syndrome is developed to address the pertinent issues, it will always actively shift the emphasis from the reasonableness of the accused’s actions to her personality in a way which confirms existing gender stereotypes.
Furthermore, battered woman syndrome suggests reliance on personal incapacity. This might lead not only to battered accused being treated as mentally abnormal, but also to the therapeutisation of domestic violence.”
727Byrne supra (n 68) 406.
728But cf Seers (1984) 79 Cr App Rep at 261 where the Court of Appeal adopted the position that judges should avoid comparing diminished responsibility to insanity for there may be cases in which the abnormality of mind upon which the defendant’s defence is based has nothing to do with an any of the conditions relating to the insanity defence.
Furthermore, the courts have been willing to accept a whole range of less serious mental conditions as falling within
‘abnormality of mind’ in order to ensure a lenient sentence or disposal.” 729
Mousourakis notes that although no clear description is given of the causes referred to in section 2 of the Homicide Act of 1957, it would appear that “disease or injury”
would in all likelihood pertain to physical injury or illness. Furthermore, the term
“inherent cause” would encompass “functional mental disorders”.730 Examples of abnormalities of mind that were sufficient for the defence of diminished responsibility to be placed before a jury ranged from arrested intellectual development combined with psychopathic tendencies,731 personality disorder induced by psychological injury,732 reactive depression caused by marital difficulties,733 chronic alcoholism, 734 and Othello syndrome.735
For a defence of diminished responsibility to succeed, it is required that the accused’s difficulty in exercising control over her conduct was substantially greater than that of a reasonable or normal person. To determine whether the accused’s responsibility was substantially impaired, the jury must adopt a broad, common sense approach.736
729Mackay supra (n 68) 118.
730Mousourakis supra (n 544) 168. Cf Sanderson (1993) 98 Cr App Rep 325; Fenton (1975) 61 Cr App Rep 261.
731Egan v R [1992] 4 All ER 470.
732Gittens [1984] QB 698.
733Sanders (1991) 93 Cr App Rep 245.
734Tandy [1989] 1 WLR 350.
735Vinagre supra (n 720) 104. This term describes a morbid jealousy for which there is no cause.
736Byrne supra (n 68) 406.
Pleading diminished responsibility is not without practical difficulties. For a diminished responsibility plea to be successful, the accused’s mental abnormality has to fall within the scope of section 2(1) of the Homicide Act 1957.737 The qualifying words in this section can be traced back to the Mental Deficiency Act 1927. Although the 1927 formulation was intended to mean “however arising or caused” the 1957 version was clearly designed to have the opposite effect. In this respect, Mackay notes Griew’s remarks in this regard:
“The terms ‘inherent causes,’ ‘disease’ and ‘injury,’ which need no explanation in the 1927 context, thus acquire a crucial significance in 1957. If the scope of the new defence is to depend on careful reading of the section, it becomes vital to know what kinds of causes are ‘inherent’, what kinds of trauma will count as ‘injury’ and what, indeed, is meant by disease’. None of these questions is easy or assured of a confident judicial answer.” 738
This could prove problematic since:
“It is perhaps not surprising that doctors should vary among themselves in how they used the four specified aetiologies, for they have no defined or agreed psychiatric meaning, and the phrase ‘inherent causes’ in particular is obviously capable of being interpreted in many different ways. More surprising was the fact that the reports frequently omitted any reference at all to the cause of the abnormality, thereby leaving the court without any written evidence as to the applicability of section 2(1). However, to ignore or overlook the bracketed clauses in this manner is far from satisfactory.” 739
In respect of battered women it should be noted that:
737See 161-162 for a discussion of section 2(1) of the Homicide Act 1957.
738Mackay supra (n 68) at 120, citing Griew supra (n 726) at 79.
739Mackay supra (n 68) 120.
“Section 2 of the Homicide Act requires that the impairment of mental responsibility relied upon in a diminished responsibility plea results from an ‘abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any other inherent causes or induced by disease or injury)’ rather than merely from a serious emotional upset. This definition does not, on the face of it, apply to women who can see no escape from violence except through their own use of diminished responsibility.” 740
Furthermore, pleading diminished responsibility presupposes an admission of mental abnormality.741 However, some English courts have treated battered woman syndrome as evidence of a temporary personality condition, caused by abnormal circumstances, rather than a form of mental abnormality.742