Gender-Based Violence: examining battered woman syndrome as a criminal defence

Raju, Navjothi

Gender-Based Violence: examining battered woman syndrome as a criminal defence

Journal Article

2019

Journal Title

Responsa Meridiana Journal of Law

Link to Journal

http://student.sun.ac.za/org/Responsa/

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

Gender-based violence is a global issue and unfortunately South Africa is infamous for its prevalence in our society. Despite our constitutional commitment to equality, domestic violence still plagues many South African households. However, when a woman, who is a victim of continuous and violent abuse, finally succumbs to the constant threat to her life and retaliates in the attempt to end the violence and protect herself, she is prosecuted. This paper identifies such women as having battered woman syndrome which is the psychological change that results from repeated abuse. Furthermore, this paper advocates that the law can extend its protection of women from gender-based violence, by considering battered woman syndrome as a criminal defence, specifically within the ambit of self-defence or pathological incapacity. In evaluating whether battered woman syndrome can fall under these defences, a critical view is taken of the law’s rigorous objective approach to reasonableness, such as when assessing what is an imminent threat under self-defence. Whilst Managay Reddi believes that an abused woman should use pre-existing defences strategies, she does concur with Dr Lenore Walker that the average person under the objective approach is expected to be a man, let alone an abused woman. Thus, alluding to the potential prejudice in the current legal system in assessing defence elements that require a reasonableness test. In addition, Jonathan Burchell holds that the objective test for reasonableness is inappropriate in diverse communities such as South Africa. Consequently, this all speaks to why a ‘substance over form’ approach to criminal liability should be taken. Furthermore, the law cannot operate within a vacuum. Substantive justice is achieved when nuanced and personal circumstances are considered, not when a rigorously objective approach is applied blindly. Therefore, it is important that the law extrapolates key information from social sciences like psychology. Doing so provides a better understanding of the abusive and traumatic experiences of battered women and how the law should appropriately consider these experiences before prosecuting a battered woman who kills her abusive partner.