Excuse them though they do know what they do - The distinction between justification and excuse in the context of battered women who kill

Wolhuter, Lorraine (1996). Excuse them though they do know what they do - The distinction between justification and excuse in the context of battered women who kill. South African Journal of Criminal Justice, 9 pp. 151–166.

URL: http://heinonline.org/HOL/LandingPage?handle=hein....

Abstract

The incidence of domestic violence, and the homicides that are frequently consequent upon it, have been subject to increased public scrutiny in contemporary society. In Anglo-American law, judicial cognisance of the conditions that cause battered women to kill their abusive partners has, in general, centred upon the admission of expert evidence of the "battered woman's syndrome" and its infusion into the concept of reasonableness in the traditional criminal-law defences. The pathologisation of domestic violence that is implicit in this syndrome obscures the structural power imbalances that underpin domestic violence. Moreover, the employment of a separate standard of reasonableness for women entrenches established gender stereotypes. This article is founded upon an analysis of Anglo-American and South African jurisprudence pertaining to the liability of battered women who kill, coupled with an assessment of the applicability of the German concept of excuse to homicides in the context of domestic violence. In terms of German law, "[c]laims of justification concede that the definition of the offense is satisfied, but challenge whether the act is wrongful. [Per contrast,] claims of excuse concede that the act is wrongful, but seek to avoid the attribution of the act to the actor. In accordance with this distinction, battered women who kill, but who do not comply with the requirements of one of the established grounds of justification or grounds excluding culpability, may be excused since they cannot fairly be expected to have acted differently. It will be argued that the German concept of excuse, provided that it is infused with the values underlying the Bill of Rights in the final Constitution, is conducive to the attainment of substantive gender equality in the context of battered women who kill their abusive partners.

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About

  • Item ORO ID
  • 39456
  • Item Type
  • Journal Item
  • ISSN
  • 1011-8527
  • Academic Unit or School
  • Faculty of Business and Law (FBL)
  • Copyright Holders
  • © 1996 Not known
  • Depositing User
  • Lorraine Wolhuter

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