A battered woman who kills her husband while he is sleeping is entitled to argue self-defence — but South Africa’s legal system finds it difficult to accept such an argument. Lawyers defending such women do not use it.
The South African legal system does not understand, says new research, that self-defence is not necessarily a matter of dealing with someone who is intending to do you harm there and then. It does not grasp that for some women, abused over a long period of time, it may make more sense to kill a sleeping husband than to try to leave him.
The Centre for the Study of Violence and Reconciliation last week launched two papers by Hallie Ludsin, a visiting researcher at the Centre for Applied Legal Studies, exploring the obstacles battered women face in employing traditional defences against charges of murder when they kill abusive partners.
“In South Africa, and pretty much universally, the criminal justice system denies most battered women who kill their abusive partners access to existing legal defences to murder,” said Ludsin. The main reason for this is the historical exclusion of women’s perspectives from these defences: “Criminal law favours men.”
Ludsin’s research finds that most courts can comprehend a typically masculine “hot-blooded” response to provocation and stress, but find it hard to understand that women may respond to the same emotions differently, and tend not to act in the heat of the moment.
“Criminal law defences do not recognise that some women will plan how to defend themselves. Nor do they recognise that extreme emotional disturbance may be more gradual than the flashpoint normally associated with the sudden heat of passion,” writes Ludsin.
Her papers argue that this highlights the unfair treatment of abused women who kill their husbands in a non-confrontational state — such as in their sleep. Because of differences in physical size and strength, and because of feelings of disempowerment and fear, most women will not act in the heat of the moment.
The state, said Lusdin, inadequately protects battered women, making it hard for them to leave abusive husbands. “Researchers report that South African women face enormous hurdles in accessing domestic violence legislation, beginning first with unsympathetic and often hostile police when reporting an incident of violence.”
There are few support mechanisms for such women. Most women have nowhere to go.
Ludsin said South African courts are fixated on the belief that abused women can always leave their husbands instead of killing them.
The research cites the case of a woman sentenced to 10 years in prison after shooting her abusive husband in his sleep — with the gun he had bought to kill her. The court said she had a number of options open to her other than killing him.
But Ludsin disagrees. Studies show that women are often most at risk of harm from abusive partners when they try to leave. “South African courts place a duty to flee on abused women,” said Ludsin.
For Ludsin, there is a lack of understanding of the effects of abuse on women. “Women do not leave their batterers for a variety of reasons. These include economic and emotional dependence. Some are too afraid of how their abusive partners will react.”
Legal practitioners do not see the threat of abuse as ongoing, but assume that once the immediate physical threat of violence has stopped the abuse is over. “This shows a very narrow understanding of the experiences of battered women who kill, and of the dynamics of abusive relationships.”
Rather, “the threat of violence will continue as long as any relationship between the abuser and his victim continues”.
In Canada, the United States and Australia, women who kill abusive partners are not penalised for failing to leave them. Yet the majority of South African legal experts interviewed for the research said a battered woman who killed her abuser in a non-confrontational situation could never show she was acting in self-defence because she was not facing an attack or imminent threat. But, said the paper, advocacy could change their minds.
Ludsin emphasises that not all women who are abused and kill their partners should be exonerated: “Each case should be judged on the woman’s individual experience,” she said.