An analysis of the Battered Wife Theory in the context of the crime of murder in South African criminal law

Abstract

This dissertation examines the criminal law defences as well as various psychological theories available to the accused who killed his or her abuser after a period of severe abuse. The study first examines the Constitution of the Republic of South Africa to determine whether or not the Constitution allows for the development of the criminal law defences and whether or not the existing defences are in line with the Constitution. Thereafter a discussion on domestic violence in South Africa follows. The occurrence of domestic violence, the legislation dealing with domestic violence and the case law are examined. The short comings of The Domestic Violence Act and the social effect of domestic violence are also discussed. The dissertation continues with a discussion on the various criminal law defence as well as the psychological theories available to a “battered spouse” who killed his or her abuser. The main findings of the dissertation are that the criminal law defences are available to the “battered spouse” who killed her abuser. The “battered spouse” can rely on private defence, pathological or non pathological criminal incapacity depending on the facts of the matter. Further, although the Constitution may require development of the criminal law the psychological theories discussed does not and cannot at this stage serve as independent defences to a charge of murder. The psychological theories themselves must first be properly developed and the war between law and medicine must be resolved before the theories can be developed as independent criminal law defences. It is however important to realise that each of the psychological theories can be used to proof the existence of the existing criminal law defences. The “battered spouse” should therefore rely on one of the established criminal law defences. Lawyers and advocates alike should take care to develop the arguments they use in defence of their clients in order to bring their clients situation into the ambit of the relevant acknowledged criminal law defence.