The Battered Woman and South African Law
3. Introduction
3.5 Provocation
3.5.3 The objective test of provocation
a sudden and temporary loss of self-control. For this reason, where there is no evidence suggesting that the accused was provoked to lose her self-control, the judge is still entitled to withdraw the defence from the jury. 613
“The reasonable man is a person having the power of self- control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did.” 616
Cockrell is of the view that “the above statement suggests that the jury should make a distinction between matters going to the gravity of provocation and matters going to the standard of self-control. For the former they should be able to take into account all characteristics of the accused (subjective), whereas for the latter the accused should have to exercise ordinary powers of self-control that would be exercised by an accused of the same age and sex (objective)”.617
In Newell 618 the Court of Appeal in explaining what characteristics may be taken into account in deciding whether the provocation offered was enough to make a reasonable person do as the accused did, referred with approval to a passage from McGregor,619 a case decided by the New Zealand Court of Appeal:
616Ibid at 718. Allen is of the view that “where provocation is at large (not being confined to specific categories of conduct as it was in the past) it is important that the provocative conduct or words be seen in context, that context involves looking at them through the eyes of the accused in light of his or her characteristics, attributes, history, relationships and circumstances, in order to understand the meaning and significance which they attributed to the conduct or words .The ordinary person, is for the purposes of the objective test, provided with contextual information but remains a ordinary person of ordinary powers of self-control. These are not to be diminished by reason of the accused’s proclivities or deficiencies”. (“Provocation’s Reasonable Man – A Plea for Self-Control” (2000) Criminal Law Review 216 at 231) According to Green v R (1997) 148 ALR 659: “If this were to happen it would raise the danger of ‘jury verdicts and outcomes which would seriously offend the communities’ sense of justice by apparently indulging, or condoning, unrestrained ‘human ferocity’.
It would sanction excessive conduct which allowed head-strong, violent people to take the law into their own hands in a way which no civilized society could permit. In effect, it would allow each individual to set the standards of his or her self-control that could be expected in face of any provocation”.
617Cockrell “Provocation: Characteristics relevant to Objective Test” (2004) Journal of Criminal Law 368 at 370.
618(1980) 71 Cr App Rep.
619[1962] NZLR 1069.
“It is not every trait or disposition of the offender that can be invoked to modify the concept of the ordinary man. The characteristic must be something definite and of such significance to make the offender different from the ordinary run of mankind, and have also a sufficient degree of permanence to warrant its being regarded as something constituting part of the individual’s character or personality...[It includes] not only...physical but also mental qualities and as such more indeterminate attributes as colour, race and creed...Moreover...there must be some real connection between the nature of the provocation and the particular characteristic of the offender by which it is sought to modify the ordinary man test. The words or conduct must have been exclusively or particularly provocative to the individual because, and only because of the characteristic.” 620
In Morhall 621 the question was raised as to whether it is for the judge to decide whether a certain characteristic was consistent with the concept of the reasonable person and, whether such a characteristic should be taken into account by the jury. The House of Lords held that the accused’s addiction should have been taken into account since:
“[It] was a characteristic of particular relevance, since the words of the deceased which were directed towards the appellant’s shameful addiction to glue sniffing and his inability to break himself of it.” 622
620Ibid 1081-1082. Yeo supra (n 538) at 85 is of the view that it is important to note that Justice North had developed this test to determine what characteristics should be permitted to affect the power of self-control of an ordinary person. The English Court of Appeal overlooked this important aspect and applied the test to assessing what characteristics were relevant to the gravity of provocation.
621[1995] 3 All ER 659.
622Ibid at 661. Lord Goff emphasized that things relevant to the gravity of the provocation should not be confined to the characteristics but, could include “the accused’s history or circumstances in which he was placed at the time, and the history or circumstances did not cease to be relevant because they were discreditable. Furthermore, a ‘characteristic’ could be something temporary or transitory if the subject of taunts or insults. However, intoxication was not to be taken into account because that, like displaying lack of ordinary self-control, is excluded as a matter of policy.” Thus the distinction in Camplin supra (n 607) between matters relevant to the gravity of the provocation and matters relating to self-control was endorsed in Morhall supra (n 621). Horder in his article “Provocation’s Reasonable Man Reassessed” (1996) Law Quarterly Review 35 at 37 is of the opinion that a matter of fundamental importance arises out the recent endorsements in the “Camplin distinction”, namely the intelligibility of that distinction where “mental” characteristics are in issue. Horder is of the view that in McGregor supra (n 619) North J rightly adverted to the fact that “special difficulties...arise when it becomes necessary to consider what purely mental peculiarities may be allowed as characteristics. Consider the example of drunkenness. In Morhall supra (n 621), Lord Goff thought that if a taunt were directed at someone on account of their drunkenness, then their drunkenness would have to be taken into account in assessing the gravity of the provocation. He added, however, that in such a case the jury would have also to be told that they should ignore the potential impact of the drunkenness on the level of self-control expected of the accused. In terms of this application of the “Camplin distinction” Lord Goff said at (at 338), “although the distinction is a fine one, it will I suspect, very rarely be necessary to explain it to a jury.”
However, the House noted that North J’s judgment in McGregor 623 must be treated with caution in light of the reservations expressed in relation to the judgment in the New Zealand Court of Appeal case of McCarthy.624 In this case North J’s position that there must be direct connection between the provocation and the characteristic the accused seeks to rely upon to modify the objective standard was called into question. In McCarthy 625 the accused had suffered brain damage and this affected his personality.
Although the provocation offered was not aimed directly at this characteristic the court was of the view that the accused was entitled to have this characteristic taken into account.626 The court stated:
“[a] racial characteristic of the accused, his or her age or sex, a mental deficiency or a tendency to excessive emotionalism as a result of brain injury are examples of characteristics to be attributed to the hypothetical person. In a case where any of them apply, the ordinary power of self-control falls to be assessed on the assumption that the person has the same characteristics. The question is ...whether a person with ordinary power of self-control would have retained self-control notwithstanding such characteristics.” 627
Yeo is of the view that the decision in Morhall 628 is important for “playing down the test devised in McGregor”.629 In McGregor 630 a characteristic qualifies for attribution to
623McGregor supra (n 619).
624(1992) 8 CRNZ 58, [1992] 2 NZLR 550.
625Ibid.
626Mousourakis supra (n 544) 92.
627McCarthy supra (n 624) 67.
628Morhall supra (n 621).
629McGregor supra (n 619).
630Ibid.
a reasonable person providing it satisfies three conditions. Regarding the characteristic of sufficient degree of permanence, the accused’s gender satisfies this condition since an individual normally goes through life in the gender she was born with. However, there are certain features of a person’s gender which may be “transitory in nature such as pregnancy, menstruation and menopause”.631 Yet these characteristics have been judicially recognized as relevant to the gravity of provocation.632
In respect of the condition that there must be a sufficient degree of differentiation from the ordinary run of humankind, it is debatable how at a general level it can be said that gender sets a person apart from the population, and yet gender has been judicially recognized as a characteristic which may be relevant to the gravity of the provocation.633 At a specific level, the Court of Appeal in Ahluwalia was prepared to regard battered woman syndrome as a characteristic affecting the gravity of the provocation because it satisfied this condition of sufficient differentiation.634 When seen in isolation; this could be considered a welcome development, since the court was acknowledging that a battered woman’s perception of her circumstances might be considerably altered by the syndrome. What was objectionable was that the Court of
631Some may see these characteristics as sufficiently permanent in which case the uncertainty over the appropriate degree of permanency required by the test.
632Camplin supra (n 607) at 177 per Lord Morris and 180 per Lord Simon, Morhall supra (n 621).
633Camplin supra (n 607) at 180-181 per Lord Simon; Morhall supra (n 621) at 892 per Lord Taylor CJ.
634Ahluwalia supra (n 602) at 898. But see further Horder supra (n 622) at 38-39: “Consider BWS.
Suppose the deceased had accused the defendant of being helpless and pathetic, upon which she lost self-control and killed him. The provocation seems to bear directly on the defendant’s syndrome, but how is a jury to distinguish between the effect of that syndrome on the defendant’s power of self- control and it’s effect on the gravity of provocation to her? In theory there may be a distinction, but could it be drawn in practice? The harsh reality is that mental peculiarities often affect powers of self-control in unpredictable ways, and when they do the defendant in question should plead diminished responsibility”.
Appeal regarded as irrelevant the evidence that the accused suffered grievous ill- treatment at the hands of the victim if its effects fell short of the syndrome.635 Her experience of protracted physical, mental and emotional abuse would be highly relevant when evaluating the gravity of the provocation. It is important for the courts to regard battered women’s perceptions of provocative conduct as the workings of a normal mind.636
A review of McGregor 637 shows that it has problems when applied to determine whether accused’s gender is relevant to the gravity of the provocation. The explanation for this was that the test was meant to apply to the power of self-control of a reasonable person and was not concerned with the gravity of the provocation.638 This was evident from reading the justification for prescribing the three conditions in McGregor 639 which held:
“The offender must be presumed to possess the power of self- control of the ordinary man, save in so far as his power of self- control is weakened because of some peculiar characteristic possessed by him. It is not every trait or disposition of the offender that can be invoked to modify the concept of the ordinary man”. 640
Being made aware of their real purpose, it becomes clear why the conditions might all
635O’Donovan “Law’s Knowledge: the Judge, The Expert, The Battered Woman, and her Syndrome”
(1993) The Journal of Law and Society 427 at 432 notes that “the recognition of battered women’s experiences by means of expert testimony in court will in future depend on the accused showing the effect of ‘grievous ill-treatment’ as such that it makes her a different person from the ordinary run of [women]”.
636Yeo “The Role of Gender in the Law of Provocation” (1997) Criminal Law Journal 431 at 440-441.
637McGregor supra (n 619).
638Yeo supra (n 636) at 442-443. This point was briefly raised by McColgan supra (n 39) 512.
639McGregor supra (n 619).
640 Ibid at 1081.
be necessary to limit the types of characteristics affecting the power of self-control of a reasonable person. North J felt the need to recognize certain characteristics affecting the power of self-control since New Zealand does not have a defence of diminished responsibility.641 Accordingly, the sooner the test is removed from English law, the better.642 Thus the only limitation placed on gender as a characteristic affecting the gravity of the provocation is that the provocation must have some bearing on gender and this limitation is easily satisfied when the provocation is viewed in connection with the gender roles of the accused.
In Luc Thiet Thuan 643 the Privy Council referred approvingly to Ashworth’s view that:
641Since English law does recognize such a plea, the accused with weakened powers of self-control should be pleading diminished responsibility instead of provocation. Furthermore, the McGregor supra (n 619) test is contrary to the ruling in Camplin supra (n 607) which stipulates that only gender and age of the accused are relevant to the power of self-control to be expected of a reasonable person (at 175). This was reaffirmed in Morhall supra (n 621) at 665-666. This ruling seems to have been overlooked by some commentators who have accepted the McGregor test as applied in Ahluwalia supra (n 602) without hesitation: see Nicolson and Sanghvi “Battered Woman and Provocation: The Implications of R v Ahluwalia” (1993) Criminal Law Review 728 at 732.
642The House of Lords in Morhall supra (n 621) noted that the McGregor supra (n 619) test had been disapproved of by the New Zealand Court of Appeal in McCarthy supra (n 624) at 558 on the ground that “the test goes somewhat too far”. It is interesting to note that English Courts have said very little about the relevance of sex to the power of self-control. Apart from sex alongside age as going to the power, there is no clear indication in Camplin supra (n 607) that their Lordships meant for sex to affect the capacity for self-control. Yeo suggests that judgments contain statements which suggest contrary – that men and women are to be held to a single standard of self-control (Yeo supra (n 636) at 451). Nicholson and Sanghvi supra (n 641) state that to interpret it otherwise would breach the principle of equality before the law promotes contentious stereotypes which depict women as the gentler sex who are normally passive and submissive in the face of provocation which men are active and aggressive. Furthermore, the view that ordinary women have higher levels of self-control perpetuates the image of women who kill as being either aberrational or excessively pathological (at) 204). Since sex was arguably not intended to affect the capacity for self-control, the House of Lords must have had some other purpose in mind. One interpretation is that the House mentioned sex only because it realized that to ask a jury to consider a gender-neutral person makes no sense (Yeo supra (n 636) at 451). This is supported by Lord Simon in Camplin supra (n 607) when he stated: “[a]
reasonable woman with her sex eliminated is altogether too abstract a notion for my comprehension or, I am confident, for that of any jury... [I]t hardly makes sense to say... that a normal woman must be notionally stripped of her femininity before she qualifies as a reasonable woman” (at 180). Yet, in the context in which this comment appears shows that his Lordship was discussing the relevance of the accused’s sex when assessing the gravity of the provocation and not in relation to the power of self-control. More fundamentally the Camplin supra (n 607) direction juxtaposes gender with age as going to the issue of a reasonable person’s power of self-control is enhanced with the direction demarcating characteristics which relate to the gravity of the provocation. Yeo supra (n 636) is of the view that the House of Lords in Camplin supra (n 607) must have intended gender to serve some purpose other than merely “humanizing” the reasonable person (at 451).
643[1996] 2 All ER 1033, [1996] Crim LR 433.
“[t]he proper distinction is that individual peculiarities which bear on the gravity should be taken into account, whereas individual peculiarities bearing on the accused’s level of self-control should not.” 644
The judgment is of vital importance: it holds that unless the mental abnormality is the subject of taunts, it is not a relevant characteristic for the purposes of the objective test.645 Concerning the need for provocation to target a certain characteristic, this condition appears to be unduly restrictive. The line drawn between specific and non- specific references to an accused’s characteristic is too arbitrary. This does not mean that provocation need not have some bearing on the characteristic.646 What the law requires is a “real connection” between the provocation and the characteristics as
644Ashworth supra (n 591) 293. In this case Lord Steyn dissented as he considered the view of the majority would lead to injustice. He was concerned, in particular with cases where there was evidence of post-natal depression, BWS, or personality disorder, all of which could be considered relevant when the jury were considering the subjective question of whether the accused may have been provoked to lose her self-control, but which would have to be discounted when considering the objective question, namely whether, a reasonable person might have been provoked to do as the accused had done. He considered that this position would leave the jury puzzled. Mousourakis supra (n 544) is of the view that the danger with Lord Steyn’s approach is that if mental conditions which impair the accused’s ability to exercise self-control for the purpose of the objective test, there is the danger that this may create the circumstances for injustice for victims by reducing the proscriptive sanction of criminal law: “I do not see how mental conditions reducing a person’s powers of self- control could fit into the provocation defence as characteristics that would modify but not preclude the objective test in provocation... Only provocations that are deemed serious enough to enrage an ordinary or reasonable person so that he may lose his self-control and kill could furnish a morally acceptable basis for a reduction of culpability” (at 235). Mousourakis supra (n 544) is thus of the view that there must be some moral basis for reduction of culpability and the basis must relate to the gravity of the provocation and not the deficiencies in the accused’s self-control. This maintains a link with the origins of the defence and its rationale serves to distinguish it from diminished responsibility. If the principle of fair labelling is important, the distinction which parliament enacted between manslaughter by reason of provocation (section 3 Homicide Act of 1957) and manslaughter by reason of diminished responsibility (section 2 Homicide Act of 1957) must be maintained (at 135).
645Ormerod supra (n 41) 453. In this case the accused adduced medical evidence which showed that he suffered from brain damage and was prone to respond to minor provocation by losing his self- control and acting explosively. The Privy Council held that this was not a characteristic capable of being attributed to the reasonable man. The council’s reasoning was that to allow characteristics of this type was not consistent with the ruling in Camplin supra (n 607) that the reasonable man has the power of self-control to be expected of an ordinary person and would in effect remove the objective condition from provocation altogether. The council was of the view that the proper defence for an accused suffering from this sort of mental infirmity is diminished responsibility, not provocation.
The Court of Appeal held that the English Court of Appeal went astray in Newell supra (n 618) by the “wholesale adoption without analysis” of a substantial part of the dictum of North J in the New Zealand case of McGregor supra (n 619) (cited in Toczek “The actions of the reasonable man”
(1996) New Law Journal 835 at 835).
646Yeo supra (n 636) 441.