The Battered Woman and South African Law
3. Introduction
3.3 Elements of self-defence .1 Reasonableness
3.3.3 Imminence of the attack
It has been accepted that an accused need not wait for the attacker to strike the first blow before she defends herself. In Devlin v Armstrong 559 the Court of Appeal acknowledged that a “plea of self-defence may afford a defence not merely to counter an actual attack, but to ward off or prevent an attack which he honestly anticipated. In that case however the attack must be imminent”.560 The imminence requirement may appear to deny a self-defence claim to a woman who uses force other than in expiation of an attack which she believes is just about to occur, and is perhaps why many such killings are not readily perceived as being by way of self-defence.561
In Palmer 562 Lord Morris did not lay down inflexible criteria but simply held:
558Chan supra (n 532) 46. As was held in Field [1972] Crim LR 435 where the court rejected the argument that a victim had to avoid places where she knew, because of experiences of previous threats, that she might be attacked.
559[1971] NI 13.
560Ibid. Per Lord MacDermott LCJ at 33. In Beckford supra (n 524) it was held that a man about to be attacked does not have to wait for his assailant to strike the first blow, circumstances may justify a pre-emptive strike (at 144). The imminence requirement is based on the assumption that the situation is a one-time violent encounter most common when the adversaries are male, or in attacks by strangers. The possibility of repeated violence in the future, or the cumulative effects of repeated violence in the past, are into taken into account. Yet many battered women become aware when the violence is likely to escalate, having been repeatedly assaulted, and may retaliate during a lull in the battering incident or when their abuser is asleep. Chan supra (n 532) at 44 states: “the battered woman learns to recognize the small signs that precede periods of escalated violence. She learns to distinguish subtle changes in tone of voice, facial expression, and levels of danger, She is in a position to know, perhaps with greater certainty than someone attacked by a stranger, that the batterer’s threat is real and will be acted upon”. For a discussion of this requirement in South African law see chapter 2 at 46-48 supra, American law chapter 4 at 194-198 infra.
561McColgan supra (n 39) 517.
562Palmer supra (n 531).
“[I]f the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence.” 563
This passage, while not necessarily requiring that the accused be under threat of immediate force before being allowed to use force in self-defence, makes it evident that the proximity of the expected attack is merely one factor to be considered in determining whether the accused’s use of force was necessary, or whether it was the result of revenge.564
A strict view of “imminence” then, should not, on the authority of Palmer 565 cause an otherwise arguable plea of self-defence to be jettisoned where there is no realistic alternative open to the person threatened. The lack of immediate physical threat would not prevent a hostage’s use of force from being necessary and therefore potentially reasonable, although the requirement of proportionality would still have to be met.566 McColgan notes that “the same reasoning applies in the case of the battered woman who like the hostage is caught within a potentially life-threatening situation and who believes that an attack will occur before she is able to effectively escape and she must strike while her attacker is vulnerable. Alternatives such as seeking police protection or of flight may not constitute adequate alternatives to the use of force as she knows from experience that either of these measures is simply a temporary one”.567 Furthermore,
563Ibid 1080-1081.
564McColgan supra (n 39) 518.
565Palmer supra (n 531).
566McColgan supra (n 39) 519.
567Ibid.
abusive men tend to use the threat of even greater violence to prevent their partners from leaving the abuse and one recognized aspect of continued abuse is the perception it creates in the abused person of the abuser as all-powerful, and inescapable. Even without expert evidence about the psychological effects of abuse the courts have accepted that an accused’s failure to seek police protection in the context of duress will not necessarily prevent her from relying on the defence.568 The jury must have regard to any threats made by the abuser to the accused.569
If the jury is satisfied that the accused’s use of force may have been necessary in the circumstances as they appear to her to exist, they should then consider whether the response was proportionate to the extent of the threat as it appeared to her to exist.
Where the force used is judged excessive in relation to the harm threatened, neither section 3 of the Criminal Law Act nor the common law will assist her and she is liable to be convicted of murder in the absence of any other defence. The harshness of this rule is mitigated in practice by the recognition that “a person defending himself cannot weigh to a nicety the exact measure of his defensive action.” 570 While the accused’s belief in the level of force required is not conclusive of the question, the jury should be instructed to treat as “the most potent evidence” of the reasonableness of such force the fact that ‘in a moment of expected anguish a person attacked had done only what he honestly and instinctively thought was necessary.571
568McColgan supra (n 39) 520. In Hudson & Taylor [1971] 2 QB 202 Widgery LJ stated that the jury should “have regard to his age and circumstances, and to any risks to him which may be involved in the course of action relied upon in deciding whether such an opportunity was reasonably open to the accused ‘so as to render the threat ineffective as a defence” (at 207). The Court of Appeal refused to deny the accused the defence of duress on the ground that the threat to them was not immediate.
569McColgan supra (n 39) 520.
570Per Lord Morris in Palmer supra (n 531) 1077. This mitigation was introduced since it is clear that the rule developed largely through cases concerning male accused.
571Palmer supra (n 531) 1078.
While Lord Morris’s reference to “a moment of unexpected anguish” appears to privilege the traditional concept of self-defence in the context of a sudden, one-off attack, its importance lies in the recognition that the objective question of whether the accused’s use of force was reasonable must be assessed in light of her circumstances, a recognition which is as valuable to the woman whose reaction is the product of months or years spent under threatened violence, as it is to the man whose ability to rationally assess the measure of response required to a sudden attack is adversely affected by the unexpected nature of that attack.572