Gender-Based Violence: examining battered woman syndrome as a criminal defence
| dc.contributor.author | Raju, Navjothi | |
| dc.date.accessioned | 2019-12-20T11:27:41Z | |
| dc.date.available | 2019-12-20T11:27:41Z | |
| dc.date.issued | 2019 | |
| dc.description.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. | en_US |
| dc.identifier.apacitation | Raju, N. (2019). Gender-Based Violence: examining battered woman syndrome as a criminal defence. <i>Responsa Meridiana Journal of Law</i>, http://hdl.handle.net/11427/30713 | en_ZA |
| dc.identifier.chicagocitation | Raju, Navjothi "Gender-Based Violence: examining battered woman syndrome as a criminal defence." <i>Responsa Meridiana Journal of Law</i> (2019) http://hdl.handle.net/11427/30713 | en_ZA |
| dc.identifier.citation | Raju, N. 2019. Gender-Based Violence: examining battered woman syndrome as a criminal defence. Responsa Meridiana Journal of Law. | en_ZA |
| dc.identifier.ris | TY - Journal Article AU - Raju, Navjothi AB - 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. DA - 2019 DB - OpenUCT DP - University of Cape Town J1 - Responsa Meridiana Journal of Law KW - Battered woman syndrome KW - South Africa KW - self-defence KW - imminent threat KW - pathological incapacity KW - post-traumatic stress disorder LK - https://open.uct.ac.za PY - 2019 T1 - Gender-Based Violence: examining battered woman syndrome as a criminal defence TI - Gender-Based Violence: examining battered woman syndrome as a criminal defence UR - http://hdl.handle.net/11427/30713 ER - | en_ZA |
| dc.identifier.uri | http://hdl.handle.net/11427/30713 | |
| dc.identifier.vancouvercitation | Raju N. Gender-Based Violence: examining battered woman syndrome as a criminal defence. Responsa Meridiana Journal of Law. 2019; http://hdl.handle.net/11427/30713. | en_ZA |
| dc.language.iso | eng | |
| dc.publisher.department | Department of Public Law | en_US |
| dc.publisher.faculty | Faculty of Law | en_US |
| dc.source | Responsa Meridiana Journal of Law | en_US |
| dc.source.uri | http://student.sun.ac.za/org/Responsa/ | |
| dc.subject | Battered woman syndrome | en_US |
| dc.subject | South Africa | en_US |
| dc.subject | self-defence | en_US |
| dc.subject | imminent threat | en_US |
| dc.subject | pathological incapacity | en_US |
| dc.subject | post-traumatic stress disorder | en_US |
| dc.title | Gender-Based Violence: examining battered woman syndrome as a criminal defence | en_US |
| dc.type | Journal Article | en_US |