Oscar Pistorius and the fast-burn excuse
If Oscar Pistorius was allowed to change his defence from accidental killing, he might try to argue some form of temporary insanity. The attempt by the wife of his former doctor to intervene in the case indicates a possible defence on these lines.
He might argue that sexual jealousy made him temporarily mad. Sexual jealousy is a fast-burn excuse that Anglo-American courts have long understood and excused. Unhinged by sexual jealousy, men act impulsively in anger. Then they blame the victim. She made me do it, they say. She provoked me.
In Anglo-American law provocation was available as a partial defence. Men who murdered their lovers or wives on the grounds of sexual infidelity were partially excused by having a charge of murder reduced to one of manslaughter.
In the UK under the last Labour government, provocation was swept away and a new partial defence was allowed that went some way to ripping an inherent sexism out of the murder law. The defence of provocation was replaced with a new partial defence of "loss of control", but sexual infidelity was excluded. Provocation is no longer – although judges have recently reinterpreted the law – an excuse for domestic murder.
In South Africa's law provocation is not a partial defence, but is taken into account as mitigation in sentencing. Here there is a long history of judges sympathising with male sexual jealousy and giving men the benefit of a fast-burn excuse, a benefit not afforded women whose jealousy burns slower when they kill – or arrange to kill – husbands or lovers.
In general provocation served to mitigate the deadly expression of male jealousy. If a man's mind was so unhinged by an unfaithful woman or the ending of a relationship, judges (who are still mainly men) sympathised with him when he killed his wife or lover in a sudden rage. If they could find evidence of revenge, deliberately planned and coolly carried out, their sympathy waned. Time was of the essence. If there was time for cool reflection or for a grievance to congeal, then a murder was premeditated. Time was measured in a metaphor. The time it took was for hot blood to cool.
The problem in our law is that men and women deal with sexual jealousy differently when it comes to murder. Men kill their lovers, while women kill their rivals. Men murder spouses and lovers in a jealous rage on being goaded about a rival or discovering a rival in bed with a lover. Women seldom blame the men who cheat on them, preferring to visit their fear and anger on their rivals.
Statistically this is accurate for men. Othello is the archetype. In Shakespeare's play, Othello kills his wife, Desdemona, whom he suspects of infidelity. Othello is jealous of Desdemona sleeping with another man. He is terrified of the thought of losing her and he kills her to keep her for himself forever.
Statistically its accurate for women as well. Often structurally unequal in sexual relationships, women have long turned a blind eye to sexual affairs, threatened only by emotional infidelity that might lead to separation.
Yet there are many exceptions to both statistical correlations. There are renowned examples of men who murder rivals. Famously Dan Sickles, a US congressman in the 1850s and close friend of then president James Buchanan, shot dead his rival, the man who was having an affair with his wife, on the street near the White House.
He was, apparently, the first American to be acquitted on a defence of temporary insanity. Read Tom Keneally's novel American Scoundrel. It is a compelling portrait of a powerful man consumed by sexual jealousy. Similarly in Adrian Lynne's powerful film, Unfaithful, Richard Gere's character is so consumed by sexual jealousy that he kills the younger man who is having an affair with his wife played by Diane Lane.
Women don't, as a stereotype, act impulsively in anger, which is why the fast-burn excuse has seldom been available to them. For too long men's fast-burn anger had been excused, but not women's slow-burn fear of abuse. They let the pain of infidelity fester inside their minds so that they are gutted from within. Their sexual jealousy burns slowly.
That's what happened to Agnes Dhlamini. She bore years of cumulative abuse from her husband, who was polyamorous but would not allow her the same liberty. She killed him when he lay asleep in 1944. At that time the death penalty was available and she was sentenced to death so as to send, as the judge said, a message to women who had it in mind to kill their husbands. But she was reprieved and given a seven-year sentence, the sort of sentence the French awarded women who murdered unfaithful men in crimes of passion.
In our gaols there are women for whom a slow-burn defence has been unavailable. Pardon petitions have been made on their behalf with little or no success.
The murder case of Graeme Eadie, the hockey-stick killer on the Ou Kaapse Weg in Cape Town, still defines our law on provocation. He lost his temper in a fit of road rage in 1999 and did not lose control, so as to act like an automaton. It's a fine line that has troubled lawyers and psychologists for years. New discoveries in neuroscience have done remarkably little to change the way the law is interpreted in our courtrooms.
Rob Turrell is the author of White Mercy. A study of the death penalty in South Africa (Heinemann, 2005).