Mishandelde vrou-sindroom en strafregtelike aanspreeklikheid

Abstract

BATTERED WOMAN SYNDROME AND CRIMINAL LIABILITY. The effect of prolonged abuse on a woman has been labelled as "learned helplessness". The theory of learned helplessness presupposes that a woman who is continuously abused by her partner will eventually accept her abuse as unavoidable and will develop a feeling of helplessness. Therefore the theory of learned helplessness gives an explanation for the psychological helplessness that battered women experience. Later the concept of learned helplessness was developed into the battered woman syndrome. The term "battered woman syndrome" refers to the physical and psychological characteristics found in the victims of prolonged abuse between intimate partners. The theory of "learned helplessness" supports the cycle of violence theory by giving an explanation for the failure of battered women to leave their abusers and to act in order to better their situation. However, when a battered woman acts and kills her abuser, the question that arises is whether her abuse can influence the general requirements of unlawfulness, conduct and fault. By successfully relying on private defence, the unlawfulness of a battered woman's conduct can be excluded. The imminence-requirement in the case of private defence can complicate a battered woman's reliance on the defence. An expansion of the imminence-requirement to accommodate murderous battered women carries the risk that battered women may misuse private defence. Battered women's reliance on private defence should therefore be restricted to cases where their abusers' attack is imminent. A battered woman can only be criminally liable for her voluntary conduct. Involuntary conduct (automatism) excludes criminal liability and is also connected to incapacity. A battered woman can rely on non-pathological incapacity as a defence. In order to be successful she will have to lead evidence which indicates that she temporarily acted involuntary at the time of her abuser's killing. A battered woman's years of abuse, her helplessness and her emotional and psychological run down state of mind can also be taken into account in finding that her capacity during the killing of her abuser was diminished and that she deserves a more lenient sentence. Capacity is a prerequisite for fault. A battered woman who does not have criminal capacity will not possess any fault and will therefore not be criminally liable for the killing of her abuser. Recently some criminal law developments took place in Australia, England and Wales. These developments specifically address the situation in which battered women find themselves. The question, therefore, is whether South Africa can learn something from these developments. It appears as if South Africa will not be able to learn something from the developments in Australia. In the case of private defence, the imminence requirement was expanded in Victoria and Western Australia to accommodate battered women. It has, however, already been shown that such an expansion can lead to a misuse of private defence by battered women in South Africa. South Africa will also not be able to learn much from the reform of provocation in the Northern-Territory. The reason for this is that the South African position with regard to the defence of provocation is more advantageous than the reform of the defence in the Northern-Territory. In South Africa diminished responsibility is only taken into account for purposes of sentencing. The South African criminal law can therefore be benefited by the creation of a defence of diminished responsibility in a similar manner than the reform of diminished responsibility in England and Wales. Diminished responsibility will then constitute a complete defence which can lead to a complete acquittal for battered women who kill their abusers. To determine whether a separate defence can be created for battered women in South Africa, an investigation into suggested defences in Australia, New Zealand and South Africa was launched. Arguments for the creation of a separate defence are, however, overshadowed by the arguments against the creation of such a defence. Therefore, the creation of a separate defence for battered women is not recommended for the South African law. By accepting the battered woman syndrome as a separate defence, the South African law also runs the risk of being impaired, rather than helped. It is therefore advisable for South African courts to rather carry on treating murderous battered woman in accordance with existing, recognized grounds of justification.