An analysis of the S v Lotter and others judgment with reference to the defence of non-pathological criminal incapacity based on coercive persuasion

Abstract

In March 2012, the Durban High Court found three accused guilty of murder on two of the accused’s parents. The Lotter case was covered extensively by the media, because of its unusual story: The two Lotter siblings claimed that they were brainwashed by the sister’s boyfriend as he had made them believe that he was the third son of God. As the siblings’ defences they decided to use the controversial defence of non-pathological criminal incapacity. This dissertation gives an extensive outline of case law that has covered this defence. While attempting to define this defence, the courts have limited its uses to such an extent, that it appears to be abolished. Viewpoints of academic authors have been considered to assist the reader in defining new borders for this defence. Redefinition is necessary in light of the Constitution of the Republic of South Africa. Concepts such as ‘coercive persuasion’ are explained in terms of psychological, psychiatric and legal backgrounds. Other countries have taken measures to restrict the use of coercive persuasion, specifically religious coercive persuasion. We therefore compare South Africa’s lack of legislation to those countries that have adopted anti-coercive persuasion legislation as the Constitution permits that foreign law may be taken into account when interpreting and developing the law. There is also a discussion on the role of expert evidence in a South African court, specifically the psychologist, as well as discussion on Post-Traumatic Stress Disorder and the Battered Partner/Spouse/ Wife syndrome in context of coercive persuasion. Coercive persuasion is viewed in terms of the defence of non-pathological criminal incapacity – as a prevailing factor that discredits the second (conative) leg of the capacity test: The ability to act in accordance with right and wrong. Defences such as automatism and private defence are also considered in context of coercive persuasion. By analysing the case of Cézanne Visser along with the other cases that considered the defence of non-pathological criminal incapacity, one is able to view that the Lotter case is not the first case that mentions a person coercively persuaded by her partner to commit crimes. After the discussion of the Lotter case (the facts and judgment are covered in detail), similarities are drawn between the two women that were coercively persuaded by their partners. An alternative judgment and sentence reveals that the Lotter case had an opportunity to develop the defence, in context of coercive persuasion, and in light of the Constitution, but failed to do so. The recommendations that follow are based on the defective dialogue that occurs between psychologists and psychiatrists, the unnecessary absence of expert evidence in court, the transformation of the defence of non-pathological criminal incapacity, a development of the term ‘coercive persuasion’ for purposes of the court when considering cases that deals with religious practices and the lack of legislative protection for women who murder their abusive husbands.