29 August 2024
The Centre for Applied Legal Studies is mounting a constitutional challenge against laws on sentencing which, it says, do not take into account the psychological effects of domestic violence. Graphic: Lisa Nelson
Lawyers representing a woman who is serving a ten-year prison sentence for killing her abusive partner intend to launch a constitutional challenge to sentencing laws. They say the laws do not take into account mitigating factors including “battered woman syndrome”.
The Centre for Applied Legal Studies (CALS) has taken up the case of the woman - only identified as MN - who was convicted of murdering her partner and sentenced in the Palm Ridge Magistrate’s Court in Johannesburg in 2022.
The woman, with the assistance of CALS, has applied for leave to appeal both conviction and sentence. CALS says its intended constitutional challenge, which can only be heard in the high court, is a compelling reason why leave to appeal should be granted.
MN is a mother of two. She was found guilty of murdering her abusive partner during an incident of domestic violence.
Evidence before the court - which was not challenged by the State - was that before her arrest in November 2018, she had been beaten regularly for a year, once so severely that she suffered a miscarriage.
On the night of her arrest, she had been held against her will and raped.
This was not the first time.
However, the presiding magistrate rejected MN’s “self-defence” plea.
“The almost inevitable culmination of escalating domestic violence is that someone will die, most often women,” said Sheena Swemmer, head of the Gender Justice programme at CALS.
“In some instances, victims of abuse may respond to violence with violence. For them, it literally becomes a situation of ‘him or me’. What we’re arguing is that our courts need to take this phenomenon into account, to engage properly with psychological aspects of domestic violence and trauma.”
CALS said the Constitutional challenge is aimed at the Mandatory Minimum Sentences Regime and the Criminal Law Amendment Act. CALS will argue that these laws are unconstitutional as they fail to take into account psychological trauma suffered as a result of gender-based violence, especially intimate partner violence which leads to “battered woman syndrome”.
CALS says current trends in sentencing show a pattern of courts giving little weight to expert evidence and witness testimonies in cases where women are accused of killing their abusers.
Presiding officers make assumptions about what is considered “reasonable” and take a harsh approach in sentencing, failing to understand the psychology of abuse.
In its written application for leave to appeal, CALS says In MN’s case, the magistrate had treated her rape experience as an attempt to “escape liability”.
The magistrate had also disregarded expert evidence detailing how women who have been victims of abuse and ultimately kill their partners suffer from psychological effects which motivate the crime directly or indirectly.
The magistrate had also not taken into account the expert evidence given about “battered woman syndrome” - which explains why women often stay in abusive relationships - and “slow burn reaction”, which explains that abused women tend not to react instantly to abuse for psychological reasons and because of the physical mismatch between the abuser and the victim.
“The learned magistrate conceded in her judgment that MN was a victim of abuse and accepted that various incidents of abuse had occurred in the past,” CALS said.
However, the magistrate did not accept that any violence had occurred on the night of the incident and concluded that the accused could have exhausted various other options to secure safety, or leave, CALS said.
“This despite the fact the MN had testified that she was worried for the safety of her children as well as hers, and that she was locked in at the time,” CALS said.
“The sentencing jurisprudence in its current form fails to consider the effects of battered woman syndrome and slow burn reaction. This case demonstrates that the current approach of providing courts with wide unfettered discretion when considering mitigation in relation to women who kill their intimate partners as a result of prolonged violence is insufficient in dealing with femicide in this country.”
“The lacuna in the law is a failure by the legislature to discharge its duties to women who are victims of cycles of abuse at the hands of their intimate partners.”
The leave to appeal application in the magistrate’s court has not yet been set down for hearing.