Intimate partner killings, criminal defences and the law

Abstract

The Constitution of the Republic of South Africa, 1996 in section 9 resoundingly guarantees the ‘equal protection and benefit of the law’ to all who are within the Republic. This undertaking is a crucial part of the South African democracy, and it is a manifestation of the law’s progression from being grossly and arbitrarily discriminatory, to becoming more inclusive and considerate of people from all walks of life. Contrarily though, a close analysis of some aspects of the law as it currently exists, shows that equality before the law is more aspirational than it is a reality. Women, in particular, are often overlooked and subjected to unfairness by the same law that, in theory, vows to protect them. The lack of accommodation of abused women who kill, by the private defence ground of justification, under criminal law is an apt example of the law’s marginalisation of women. This marginalisation manifests itself in the rigid approaches to cases of abused women who kill. The typical approach is the objective ‘reasonable person’ standard which is effective in most instances but has fallen short in cases of abuse, as such cases require consideration of the abused woman’s unique set of circumstances. This calls for a closer exploration of the specific and subjective factors of women’s experiences in order to comprehend the nature and extent of the abuse. Although expert witness evidence is admissible in these cases, the weight placed on such evidence is minimal, often leading to a miscarriage of justice. In view of that, this paper serves to play a dual role of re-identifying the inadequacies that continue to exist under the private defence laws in South Africa, while simultaneously providing recommendations on how the law can be developed to successfully address these inadequacies.