THE LEGAL SYSTEM AND SPOUSAL KILLINGS
Prepared by the Centre for the Study of Violence and Reconciliation
This submission has been prepared by the Centre for the Study of Violence and Reconciliation (CSVR) and is endorsed by the following organisations:
Tshwaranang Legal Advocacy Centre to End Violence Against Women (TLAC)
Maintenance Action Group (MAG)
Nisaa Institute for Women's Development
People Opposing Women Abuse (POWA)
It addresses three issues:
- the phenomenon of intimate femicide
- the legal system and spousal killings
- and makes recommendations to address the problems identified above.
PART 1. INTIMATE FEMICIDE
The term 'femicide' was first used at the 1976 International Tribunal on Crimes against Women. It is not a legal term but a term developed by the women's movement to draw attention to the fact that some murders are gender-motivated, meaning that particular beliefs or ideas about women underlie some men's killing of women. Although femicide takes different forms (including rape-murder and sexual serial-killing), this section will focus on intimate femicide, the most extreme form of domestic violence.
Intimate femicide has been defined as: "the killing of women by intimate male partners". In terms of this definition, an intimate male partner would refer not only to husbands, but also to common-law partners and boy-friends. Men estranged, separated or divorced from their partners also fall within the definition of an 'intimate male partner'.
In 1995 I conducted a study on men who kill their wives on behalf of the South African NGO Secretariat for Beijing and People Opposing Women Abuse (POWA). Data was taken from the inquest courts at the Johannesburg Magistrate's Court and three newspapers, The Sowetan, The Star and The Citizen. In total, 130 cases were identified - 119 of which occurred during 1993 and 1994. Findings relevant to this submission are summarised below.
1.1. Summary of Findings
The average age of the women murdered was 30 years, with the youngest victim being aged 14 and the oldest 41 at the time of their deaths. At 30, women are most likely to be married, caring for dependent children, and (increasingly) working and developing their job skills. Not only are these deaths then a tragic waste of individual women's lives, but they are also likely to impact most severely on the woman's children and other family. More broadly, the loss of women at these ages is also a loss to the economy, the community and the workplace. Of additional concern is the fact that twelve percent of this group were estimated to be 20 years and younger at the time of their deaths, suggesting that young women may become involved in abusive relationships while still adolescents. To date though, little or no attention (in South Africa at least) has been paid to dating violence amongst adolescents.
Men who killed their intimate female partners came from a variety of backgrounds and included computer consultants, taxi drivers, schoolboys, academics, the unemployed and wealthy businessmen. Strikingly, policemen constituted nearly one in five of perpetrators in this sample.
Gunshot wounds accounted for the overwhelming majority of all deaths in the newspaper sample. Death was also caused through stabbings, beatings and bludgeoning, strangulation and being set alight.
Almost twenty percent of killings appear to have been directly related to the woman's decision to end the relationship.
Just under half of the men in this sample committed suicide after killing their female partners.
The heaviest sentence handed down to a man who killed his female partner was fourteen years. He killed not only the woman, but her two children as well (they were not his).
During 1993/94 at least 1 woman was killed every 6 days in Gauteng by her intimate male partner. This calculation is based on dividing the 119 cases collected from the newspapers and inquest court over two years.
PART 2: THE LEGAL SYSTEM AND SPOUSAL KILLINGS
In response to the sentence handed down to Sandy Ramontoedi in October 1997, the Femicide/Justice for Women Working Group was formed. This group consists of the CSVR, POWA, the Centre for Applied Legal Studies, TLAC, MAG and NICRO. The group has been meeting to monitor cases of intimate femicide as well as cases of battered women who kill their abusers. To date we have approached the Witwatersrand Attorney-General requesting his office to appeal Ramontoedi's sentence; made contact with women awaiting trial; begun research into the feasibility of launching appeals against the long sentences women are serving; begun compiling comparative lists of the sentences handed down to men and women; and provided expert testimony on domestic violence and intimate femicide in the High Court.
The cases monitored to date suggest that in general, women who kill their abusers are receiving lengthier sentences than men who kill their partners. Additionally, it is also possible that African women are receiving the heaviest sentences of all. A review of the way in which trials are conducted suggests that the South African legal system is not equipped with the jurisprudence to understand the dynamics of abuse; and nor are judges and magistrates comfortable with hearing expert testimony around domestic violence.
There is good reason to develop progressive jurisprudence around domestic violence because it is a crime like no other. Incidents of domestic violence are not isolated, rather they form part of a pattern of ongoing, repetitive abuse. It is this pattern of persistent abuse that our courts generally ignore.
Four case studies are presented to illustrate these arguments.
2.1. Sandy Ramontoedi
In 1996 prison warder Sandy Ramontoedi went on trial for shooting and killing his wife Yvonne. It appears the shooting was prompted by Yvonne Ramontoedi's attempts to secure maintenance for the couple's child. Mr Ramontoedi accused Mrs Ramontoedi of having had an affair and denied paternity of the child. Mrs Ramontoedi then approached the Johannesburg maintenance courts for assistance and a summons was issued to Mr Ramontoedi. On the day of the hearing, he shot and killed Mrs Ramontoedi at the maintenance court.
Some time before the fatal shooting, Mrs Ramontoedi reported to a Soweto police station that her husband had fired shots at her and threatened to kill her. On the day of the hearing, she also went to Johannesburg Central police station and requested protection from her husband. When she arrived at the courts, she also informed the prosecutor of her husband's threats against her. Nonetheless, because Mr Ramontoedi is a prison warder, his gun was not removed from him. When the prosecutor left the room, leaving the couple alone together, Mrs Ramontoedi was shot and killed. According to the Maintenance Action Group who monitored the case, the judge refused to allow evidence of these previous threats to be heard.
Mr Ramontoedi was sentenced to three years correctional supervision to be served over week-ends in installments of twenty hours. We have been informed that Mr Ramontoedi continues to work as a prison warder.
According to the State Advocate who prosecuted the matter, the judge decided that correctional supervision was appropriate, taking into account the fact that Ramontoedi was 'provoked'. This finding of 'provocation' is extremely disturbing for the following reasons: at no point during the trial was evidence ever led by Mr Ramontoedi offering a defence of provocation. (Ramontoedi's version of events was, in fact, rejected by the judge.) Despite the absence of this evidence, the judge decided anyway that Ramontoedi must have experienced some kind of 'unknown provocation'. It is completely unacceptable for a judge, of his own accord, to come up with a defence for an accused when no such evidence has been led.
2.2. Nigel Holborn
Nigel Holborn was both physically and emotionally abusive towards his wife Patsy. In an effort to stop his abuse, she obtained a Prevention of Family Violence Interdict against him. Unfortunately, this did not stop him from stabbing her to death in 1996. He was sentenced to 13 years imprisonment, the judge having taken into account Holborn's claim that he had been drunk at the time.
As a general comment, it is extremely hard in cases of intimate femicide to have instances of previous abuse admitted into evidence; the Holborn matter is something of an exception. The absence of this evidence permits the accused to argue:
That he is not a violent person - which is untrue. Although he may not be violent towards strangers and acquaintances, he is habitually violent towards his wife. The exclusion of this information may lead to a lighter sentence for the accused.
The killing was an aberration. But when the killing is placed in the context of a general pattern of abuse within the relationship, it becomes clear that the killing is a culmination of the violence - and not an isolated, 'provoked' event.
As some similarities exist between these matters, it is interesting to note the discrepancy in sentences. An interview with a State Advocate points to a reason why this difference might exist. She stated that the judge in the Ramontoedi matter is known either to acquit men who kill their wives or sentence them very lightly. As a consequence, State Advocates make some effort to ensure that such cases are never placed before this particular judge. (He is not the only judge with this reputation though.)
2.3. Meisie Kgomo
Meisie's husband beat her regularly when he was drunk. She received injuries to her head and neck region which often required treatment at the clinic and hospital. She also reported the beatings to the police which would, for a time, stop her husband from assaulting her. She discussed the beatings with her mother who sent her to a social worker. Meisie continued to stay with her husband as she loved him and hoped he would change.
The badly beaten body of Meisie's husband was discovered in the veld one day and she was arrested shortly thereafter for his murder. Meisie's brother (who knew about the batterings Meisie received), and his friend(s) were also arrested. Meisie was accused of encouraging her brother to kill her husband. Meisie denies having done so and a number of questions are raised around the way she was treated by the police and courts. Despite these puzzles, Meisie was sentenced to death in 1993. Although the death penalty has been abolished, Meisie will languish in prison indefinitely until such time as she is finally resentenced. It should be noted that none of the men from the intimate femicide group was sentenced to death for their crimes.
2.4 Elsie Morae
Elsie's husband beat her regularly, usually kicking and shoving her and sometimes threatening her with a gun. He also accused her of having affairs and on one occasion, consulted a sangoma who confirmed these accusations. He returned home and beat Elizabeth and then went back to the sangoma again with the telephone, and Elizabeth's pillow and panties. This left Elizabeth feeling humiliated and angry. Elizabeth's children often witnessed the beatings she received and tried to protect her by telling their father to stop, or by trying to hit their father. He neglected them and showed no interest in them.
Elizabeth left her husband on a number of occasions and returned to her mother. Her husband always persuaded her to return by promising that things would change. Elizabeth approached her husband's family for help but was rejected on the grounds that these matters were trivial. She also reported the beatings to the police. The police's intervention resulted in temporary cessations of the violence. Elizabeth also found employment, but had to leave the workplace after her husband started interfering with her job. Then Elizabeth's mother died, leaving Elizabeth alone and without support. Elizabeth now became extremely isolated and desperate to change her situation, which was worsening. Without her mother's support, and without a job, she had no idea how to support her four children if she were to leave.
The final straw came the day there was no food in the house and the children were left hungry. Elizabeth picked up the gun, walked into the bedroom where her husband lay sleeping and beat him to death. She was sentenced to 21 years' imprisonment.
In neither Elizabeth nor Meisie's case was evidence of the abuse heard - despite this being absolutely crucial to their defences (which may partly explain the long sentences they received). Meisie's case also illustrates how the current defences of provocation or self-defence are inadequately conceptualised in relation to battered women. For either defence to succeed, it needs to be shown that the attack occurred immediately after the provocation, or threat to life. But the 'person' who kills in a rage during a sudden and temporary loss of self-control is more likely to be male than female. Women are either too terrified or too powerless to fight back in the heat of the moment. They also lack the physical strength to beat someone to death. Consequently women are more likely to use weapons, and to wait until the man is vulnerable (sleeping, or perhaps drunk) before attacking. As these attacks appear premeditated, there is no possibility of claiming the action took place in the heat of the moment. The current provocation defence also does not allow for the possibility of cumulative provocation to be considered: a series of abusive, provoking assaults being repeated over a period of time eventually causing the woman to snap.
Both these cases highlight how these women actively sought ways to end the abuse. Yet it would seem that the interventions society currently offers battered women do not meet their needs. For Meisie in particular, without a job and without family support, she was left trapped with her husband. Under these circumstances, killing her abuser represented a desperate last attempt to stop her husband's assaults and neglectful behaviour after all other efforts had failed.
PART 3: RECOMMENDATIONS
1. The Portfolio Committee on Justice should initiate a Task Team inquiry into the question of gender bias in sentencing, especially in relation to the disparities between men who kill wives as part of a pattern of abuse, and women who kill abusers in a last attempt to escape the violence.
2. The Committee should investigate the possibility of introducing legislation permitting the introduction of 'similar fact' evidence, or evidence of a history of domestic violence in cases where this evidence is applicable. Failure to introduce this evidence gives a distorted picture of the relationship. Domestic violence cases are unique in the sense that is the cycle or pattern of abuse that has led to either the death of the abuser or abused, yet it is precisely this pattern that the courts refuse to allow to be established. South African jurisprudence is way behind in terms of incorporating an understanding of the dynamics of abuse into the way these cases are handled.
3. The complete defence of 'non-pathological criminal incapacity' must be abandoned. Its existence enjoys no empirical support in the field of psychology nor is it recognised anywhere else in the world. The lack of research evidence supporting this condition suggests that it is more of a convenience for the legal system than a recognised fact. However, two women who killed their abusive partners (see Wild 1990 1 SACR 561(A) and Campher 1987 1 SA 940 (A)) were acquitted on the basis of this defence; nonetheless it remains unacceptable. It implies that women are temporarily mad when they kill their partners. On the contrary, battered women who kill their abusers are trying to save their lives and reacting in a normal way to an extremely abnormal and dangerous situation. It is suggested that defences such as 'cumulative provocation' or 'self-preservation' be explored further.
4. Women currently serving sentences for killing their abusers should be granted an early release. Consideration should also be given to converting their prison sentences into community service sentences.
5. As a matter of priority, both the magistrates and the judiciary require extensive training aimed at challenging gender biases, and introducing a more informed understanding of domestic violence.
6. The committee is urged to review both the finding and sentence handed down to Sandy Ramontoedi. Women in Meisie Kgomo's position urgently need to be re-sentenced. As Meisie has already spent five years in prison, it is recommended that she either be released or have her sentence converted to community service.
7. It is clear that even when women have obtained interdicts to protect themselves from the abuses, they are not protected by the law. In some cases, it is precisely the act of securing the interdict that provokes a future - and lethal- attack. Systems need to be put in place where the dangerousness of a woman's situation can be assessed and addressed by the police service.