Should the victim of ongoing abuse be able to retaliate against a future attack?
Private defence is a ground of justification used to exclude the element of unlawfulness. It is the defence by a person to the voluntary human criminal attack of another. Private defence falls under common law, however when interpreted id done in lines with the spirit of the Constitution of the Republic of South Africa, 1996 (“Constitution”) or it will otherwise be invalid. In terms of current law, it is extremely difficult for a battered woman to rely on this defence if she kills her abuser in a non-confrontational attack because she does not meet the certain requirements such as that the attack must be imminent or it is not seen as the only method of escape.
Should battered women be able to rely on private defence if she is retaliating against a future attack?
Burchell defines Private defence as:
“a person who is a victim of an unlawful attack upon person, property or another recognised legal interest may resort to reasonable force to repel such
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The attack must consist of a voluntary human act which is unlawful and which is not in line with the definitional elements of a crime.
It must threaten a legally protected interest, most often associated with life and bodily integrity. However, it may also be against other legal interests such as property or the interests of a third party. A battered woman could argue that she was protecting her basic human rights contained in the Constitution, such as human dignity and freedom of security of person.
The attack must be imminent and not yet completed. A person may not attack another person because she anticipates that in the future that he will attack, private defence is not a form of vengeance. Unless the attack on a battered woman is currently underway the courts tend to lean away from private
The question raised in the Hawthorne v. State amicus was related to the expert testimony of Dr. Lenore E. Walker, a Clinical Psychologist with extensive involvement in the study and research of “battered woman syndrome.” Amicus indicated Dr. Walker’s testimony would provide the Trier of facts with expert opinion on a battered woman’s belief that resorting to the use of deadly force against her husband was required, if the woman had perceived imminent death or bodily hard to herself and/or her children. Dr. Walker would clarify battered woman’s syndrome to the jury including clarifying all the relevant stages, cycles of violence, symptoms and reasons why women choose to stay with the abuser.
In 1990, Brenda Koss shot her husband, Michael, while he slept and killed him consequently. Brenda Koss and a number of other witnesses testified about Michael’s ongoing abusive behaviors toward her. The Ohio Supreme Court recognized BWS as a defense in a criminal case. The Koss case is an example of how the law and perception on BWS evolved. In 1981, the state high court had refused to allow the admission of any evidence on BWS, believing that it had not yet been scientifically validated to sufficient extent. However in State v. Koss case, the court found that the professional literature and psychiatric understanding of BWS had very much improved; therefore, the court reversed itself and held that expert testimony on BWS could be admitted in a trial. The Court held that evidence of BWS was admissible through an expert testimony to help prove an element of self-defense —that is, Brenda Koss had a bona fide belief that she was in imminent danger of death or great bodily harm and that her only means of escape was the use of force (Bettman, 2011). This case illustrates how the court changed its opinion and perception on BWS as the public started to understand more about BWS and battered women. Unlike State v. Stewart (1988), BWS was positively used to support battered women’s acts of self-defense. Shortly after the Koss case was decided, the legislature passed a law recognizing and validating BWS; it permits the use of expert testimony in support of the defense.
There are many cases where self- defense has been used as a plea where the victim felt they were in harms’ way or unable to escape a specific situation that ended badly. The definition for self- defense is: 1. Defense of oneself when physically attacked 2. Defense of what belongs to oneself, as ones work or reputation 3. (Law) the right to protect oneself against violence or threatened violence with whatever force or means reasonable or necessary. According to an expert on battered women, a woman must experience at least two complete battering cycles before being labeled a battered woman. (Walker) According to Dowd, “he believes the proper use of BWS assists the fact finder to understand the state of mind of the battered woman at the time she fought back against her abuser.”(1) Women should be able to use BWS as a plea when habitual abuse occurs within a relationship with a significant other and results in violence or worse death.
Like child abuse, it affects every American by impacting those we love the most. Awareness for domestic violence victims has evolved since the beginning of our country. In earlier times, it was a private matter, and took place “behind closed doors”. They helped them past their sufferings and place them back into mainstream culture. (Karmen, 2015) Claims one movement that assisted with the process is the Feminist Movement. This widespread movement took place during the 1970’s, and represented the “beaten women”. It helped them stand up for themselves during their distraught times. Domestic tranquility ensures women their safety at home under their husbands’ protection. The Feminist’s Movement questioned domestic tranquility and urged women to stand up for themselves (Karmen, 2015). They discovered the “silent crisis” that lived inside so many women at the time. The crisis was that the men they married gave into the times of “behind closed doors” and “look the other way”. Those times would stand no more, due to the feminist’s movement and widespread awareness. Laws and legislation have changed since the rediscovery of the victims of domestic violence. One example is restraining orders. Restraining orders set up a level of protection for the women from the male offenders. Another example of legislation is The Violence Against Women Act. Promulgated in 1994 the act mandates that all states enforce protective orders issued in a
The opposition would say that taxpayers should not pay the bill for a private personal matter. Domestic violence cost more than $37 billion a year in law enforcement involvement, legal work, and medical and mental health treatment, and lost productivity at companies (Safe Horizon). Taxpayers would not want to pay for someone else’s private matter for the fact that as hurt as they could be the victim usually always returns to the abuser. That being the case why pay for someone else’s private personal matter if even when they do receive the help that they need at the end of the day the victim still decides to return to the abuser no matter the amount of help he/she received.
Violent behavior by men against their family members were traditionally considered private matters. We recognize public violence as being morally wrong or socially destructive. Domestic violence and child abuse are two forms of private violence that were more or less immune from public scrutiny and considered inappropriate for "outsiders" to intervene in unless the problem reached extreme proportions.
First I would like to address the definition of Battered Woman Syndrome. Battered Woman Syndrome (BWS) is a condition often used by the defense in cases like this one to relieve the defendant of some or
However, domestic violence is not a new issue within our society. For centuries, women have been regarded as the property of men, offering them leeway in the enforcement of domestic abuse laws. Public opinion held that as heads of households, they had the right to discipline their wife and children as they saw fit. Eventually, women came to view this prevailing belief as truth. An inevitable outcome was their denial as victims at all. They simply saw it as the way it was and accepted it as such. Non-intervention has typically been the preferred method in regard to family matters. The long standing belief held that ‘what happened behind closed doors was no one’s business other than that family’s’ ruled the attitudes of society, the lega...
DISCUSS THE EXTENT OF PROTECTION FOR WOMEN AGAINST MALE VIOLENCE BY THE STATE. For this essay I am going to look at Domestic Violence against women and what the State is doing to protect them. Domestic Violence is now a well-known global occurrence affecting not only women but also their children too. Violence against woman has been around since the dawn of time. We have all seen cartoon pictures of the caveman dragging his mate behind him by her hair. It was just something that men did. Woman had no protection against men especially if they were married to their attacker. For the first 75 years of the 20th century women were seen as meek and subservient to their men and were also owned by those men. Men had a social right to keep their women under control. Things began to change from the late 1960’s early 1970’s. As feminism became more popular the feelings that men owned their women began to subside. But this change in society did not so much to change the occurrence and violence of violence in the home. So what exactly is domestic violence? “ Domestic Violence is usually defined as physical, emotional, sexual and other abuse by someone (usually but not always a man) of a person (usually not always a woman) with whom they have or have had some form of intimate relationship such as marriage, in order to maintain power and control over that person. It may include threats to kill or harm the woman and/or her children or other family members” (Barron 1992) Lists of typical injuries sustained by victims include: § Bruising § Bleeding § Hair loss § Knife wounds § Scratches to body and face § Concussion § Broken/loss of teeth This list could go and on. Injuries do not have to include physical but also mental. The cause of domestic violence against women can never fully be documented. There is the Liberal approach that violence against women is a rare occurrence and that it is only a small number of men who will abuse. They blame social backgrounds that form a cycle of abuse. If the father used violence against the mother then the child will see it as normal. They also feel that to push a man as far as to commit an assault sexual frustration should also be taken into consideration. But the criticisms against this approach include the notion that not all men who come from a broken home go out and commit rape and systematic abuse. They see that the women have to...
suddenly jumps in front of her and drags her into an alley. The attacker strikes (A) and rips her clothes. Fortunately, (A) hits the attacker with a rock and runs to safety. The man’s actions do not amount to assault, they amount to a battery as he dragged the woman to an alley, stroke her, and ripped her clothes off with the intent of causing her harm. The acts of the woman are a measure of self-defense, and she cannot be held accountable for the infliction she may have induced to the man. If the man just followed her without having any physical contact with her, his actions would have constituted to assault, as he would inflict fear into the
Defences of Assault and Battery In most crimes there are always defences to the offence that has been
Unmistakably, domestic violence is a major issue in modern society, not only to the affected persons, but also to the entire community. Failure by the government to adequately address this aspect is most likely to expose more citizens to greater danger, which could include death. In view of this, Congress and other political leaders should adopt strict policies on domestic violence, because most citizens are suffering in one way or another from the effects of domestic violence. This is ostensibly because the current legal system does not sufficiently provide for the required protection, when it comes to domestic violence, and the situation at the moment is critical (Shipway, 20). This essay paper analyses some of the appropriate policy measures that the government, through congress should consider to make sure human rights are upheld.
Gender-based violence has been recognized as a large public health problem as well as a violation of human rights worldwide. One out of three women has been beaten, coerced into sex, or abused in another way at least once in her life (www.infoforhealth.org). The abuser is usually a member of the family, introducing the difficult problem in that the abuse usually happens behind closed doors, and is often viewed by cultural norms and legal systems as a family matter rather than a crime.
Women have always been known as the weaker gender and are protected more often when it comes to violence because of their lack of size and strength, but their difference in size does not mean they are harmless, it means they have to do whatever it takes to inflict pain in any way possible. Women are motivated to use violence in ways of intimidation, anger, and punishing misbehavior by their partner (Straus 338). In the book Abused Men: The Hidden Side of Domestic Violence, Cook notes “’although there were fewer female assaulters than males, women would appear more dangerous than men when they actually become offenders’” (20). The patterns of violence used by women tend to be to throw something or to use a weapon (Cook 22). Women are more protected in domestic violence and when they initiate violence it is most likely because it was self-defense but men are not allowed to use self-defense because the man defending himself is deemed the attacker, even if they were not the ones to initiate violence. Even when the police are involved and they know the victim is a man, they are always going to protect the women first and assume the man was the assaulter. Men are ultimately stuck between a rock and a hard
“One woman is beaten by her husband or partner every 15 seconds in the United States” (Stewart & Croudep, 1998-2012). Domestic violence can interfere with the husband-wife relationship because one spouse is always in constant fear of the other. This violence could vary from physical abuse to ps...