By Adv Thoko Majokweni of NPA-SOCA Unit

Date: 20 August 2004

Many women experience the harsh realities of violence not only inside the walls of their homes, but also in their communities. The situation becomes more horrendous and atrocious when it is the state / government that reinforces the pain and ‘perpetrates’ violence against the vulnerable women it seeks to protect. In identifying the categories of ‘violence’ against women, the UN Economic and Social (1994): Preliminary Report on Violence Against Women classified the impositions of harsh prison sentences against women as nothing less than acts of violence by the state. As signatories to the 1981 UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and proud owners of a globally-competitive Constitution, South Africa ought not to rest until all elements of gender violence are uprooted from the family units, communities, court systems, correctional services and prisons, as well as from the laws and policies from which government structures operate.

Catching a statistical glimpse on this topic, one cannot overlook the glaring problem of overcrowding in prison population. Many local reports significantly acknowledge it as the greatest obstacle that keeps wearying down some of the most commendable and progressive initiatives that DCS introduces in an attempt to respond to the country’s Constitutional demands and imperatives. However, it would be stepping on a narrow intervention approach to view this overcrowding crisis in isolation of the NPA and the Department of Justice and Constitutional Development. The reciprocal nature of the statutory obligations that exist between our courts and the correctional services clearly demand the joint and collaborated efforts to keep the numbers of inmates to a manageable degree.

The DCS Annual Report 2002/3 recorded a shocking prison overcrowding of 63.2%. Of greater concern is the recently released figure of about 3040 women who are behind bars. Approximately 164 female inmates are currently serving imprisonment sentences ‘for killing their abusive partners’. More than 50% of the female prison population are mothers, who are, in terms of the Correctional Services Act 111 of 1998 only permitted to stay with their children until they reach the age of 5. However, whilst recognizing the DCS’ commitment to create a safe, secured and humane environment for the imprisoned mothers and their toddlers, raising a child behind bars will always have its shortfalls and limitations that may probably, later in life, manifest in revolting emotional, behavioural and health problems to the child. As unanimously noted by many research reports on this topic, children raised in prison are likely to adopt a chaotic and criminal lifestyle in adulthood that may take them to prison life.

Just recently, the National Study of Femicides in South Africa, conducted in 1999 for the NPA-SOCA Unit by the Medical Research Council, University of Cape Town and the Centre for the Study of Violence and Reconciliation, stirred and aroused a serious national concern when it revealed the shocking findings that in South Africa 8.8 per 100 000 women of 14 years and older were killed by an intimate partner. This figure places this country in the relatively highest statistical position in the world, and when translated further, it brings an unsettling reality that in 1999 alone:

• 4 women were killed per day by an intimate partner, &
• 1 in every 2 murdered women was killed by an intimate partner

If South Africa fails to protect one woman from being killed by her partner each day, then it explains why we are currently faced with an increasing rate of women who resort to killing their abusive intimate partners.

The escalating figure of women who kill their abusive intimate partners is vastly becoming a regular tragic reality in our courts. It is an unfortunate consequence that often stems from a long endurance of violence, which often makes leaving the relationship seem impossible in the eyes of the abused woman. This is due to the Power and Control dynamics exercised by the abuser to support and hold together the series of abusive tactics and behaviours. The consequent death of the intimate partner often manifest in relationships where the rotation of this power wheel has succeeded to modify and drive the responsive behaviour of the abused to a submissive point that supports the traumatic bonding between the parties, despite the violence.

Research has vastly reported, both locally and internationally, that a woman living in an abusive intimate relationship kills or attempts to kill her partner because of various dynamics of abuse that ultimately twist and condition her states of mind and behaviour to:

• Believe that there are no other means of preserving her life, except by killing her abuser;

• Constantly perceive only danger and harm from her abusive partner, even in instances where it is not intended;

• Believe that leaving the abusive relationship may lead to her death;

• Lose trust in the justice system or fear to engage in any kind of help;

• Lose herself to an overwhelming sense of desperation to be free from her psychiatric state of mind that anticipates her death in every second she spends in the presence of her abuser;

• Feel helpless, either from failed attempts to stop the abusive behaviour of her partner or due to lack of support;

• Be overwhelmed by intense fear, horror, helplessness and/or despair; etc.

It has, however, been argued in many cases that the consequent criminal behaviour of the abused woman has been driven by a form of Post Traumatic Stress Disorder (PTSD), which is a psychological condition that results from severe trauma.

In a landmark judgment handed down on 1 April 2004, the Supreme Court of Appeal overturned Ms Anita Ferreira’s sentence of life imprisonment in favour of imposing a term of imprisonment of 6years, suspended insofar as it exceeds the period that she has already spent in prison for three years on condition that she is not convicted of any offence involving the infliction of serious bodily harm.

Ms Anita Ferreira, the first appellant, appealed against her sentence of life imprisonment for the murder of her common law husband, Cyril Parkman, at whose hands she suffered nearly 10 years of severe physical, economic, emotional and sexual abuse.

After pleading guilty, the trial court sentenced Ms Ferreira and her two co-accused to life imprisonment on 27 November 2000 in terms of section 51(1)(a) of the Criminal Law Amendment Act 105 of 1997, which Act prescribes the mandatory minimum sentence to be imposed in such cases. The court found that the prolonged abuse did not constitute "substantial and compelling circumstances" so as to justify a departure from the mandatory minimum sentence, as is required by s51(3)(a) in order for a lesser sentence to be imposed.

The judgment is important not only for Anita but also for abused women generally.

Judge Howie, writing for the majority of the Supreme Court of Appeal, accepted argument by the Women’s Legal Centre, attorneys for Ms Ferreira, that, in cases such as these, the long history of abuse constitutes ‘substantial and compelling circumstances’ which would allow a court to impose a lesser sentence than the life imprisonment prescribed by law.

The majority judgment, also recognised that the Constitutional rights to dignity, equality, freedom and security of the person, security in and control over one’s body, privacy and life are relevant in such cases and that there is a duty on the State to respect, protect, promote and fulfill these rights.

‘Her decision to kill and to hire others for that purpose is explained by the expert witnesses as fully in keeping with what experience and research has shown that abused women do. It is something which has to be judicially evaluated not from a male perspective or an objective perspective but by the court’s placing itself as far as it can in the position of the woman concerned."

Lisa Vetten and Kailash Bhana, from The Centre for the Study of Violence and Reconciliation, gave expert evidence on Anita’s behalf to the effect that "abused women who kill their abusive partners do so believing that there is no other way out, that the decision to kill represents a desperate act of self-preservation aimed at preserving what little physical and psychological integrity they feel they still possess and that separation by death is the only hope they feel they have of ever escaping the abuser and being free from the abuse".

In accepting the expert evidence, the majority stated further that ‘this is not a case where the first appellant’s motive was anything other than to end the relationship so as to preserve her bodily integrity.’

When deciding for purposes of sentence whether moral blameworthiness has been reduced the majority accepted that the sole consideration is what the abused woman subjectively believed and intended.

The court also accepted that while imposing a life sentence on an abused woman who pleads guilty to murdering her abusive partner is formally equal to imposing a life sentence on another offender found guilty of murder, substantive equality requires an acute awareness of the lived reality of people’s lives and an understanding of how that reality reinforces vulnerability, disadvantage and harm. In the case of abused women, the court accepted that this means weighing up the severity of the crime, the circumstances of abused women, the broader context of domestic violence and its effects on the substantive equality of women and the interests of the society.

Of significance is the Supreme Court’s recognition that Anita never constituted a danger to society and that a non–custodial sentence would have been appropriate in the circumstances of her case.

‘There is still a very common assumption that the troubles of childhood [will] pass, that children are resilient, that they forget. The truth is that children’s lives are continuous. The scars of early childhood do enormous emotional damage in the present to the child’- Hendriks et al, 1993, 172.

In most literature, it is reported that children of a woman who has killed their father in the context of domestic violence often suffer tremendous trauma, which can be traced from the deep loss, grief, emotional shock, regret and the immense shame children often experience from this violent death. Whilst some of them may find it hard to reconcile the violent conduct of their mother with the principles of love, unity and trust that ought to exist within the family unit, it has been reported that the subsequent forced separation from their mother through imprisonment often intensifies their loss and lead to more serious traumatic consequences. Some children may interpret the incarceration of their mother ‘as maternal abandonment, or begin to believe that the mother is an evil person’- (Kailash Bhana & Tessa Hotchfeld, 2001, at p 15 supra).

If our Constitutional and legislative obligations require us to preserve family 'unity, peace and love, and also promote children’s emotional security and freedom, especially in this Year of Family, then we need to review if it is always possible to impose jail sentences to mothers who have killed their partners. As significantly noted,

‘By imprisoning [the mothers], we punish not only the killer, but the innocent children who lose both parents suddenly, traumatically, and simultaneously. The children’s fate is dire.’- Hendriks et al, 1993 p100.

It has been widely reported that the impact of a mother’s imprisonment on children often leads to serious traumatic conditions that have far-reaching consequences on the child. These may include abuse of drugs, depression, feeling of aloneness and shame. In instances where the siblings are still very young, a mother’s jail sentence often unfairly compels the eldest child to take up a role of parent or engage in child labour.

Based on the principles of fairness, obviously we cannot give these cases justice if we look at them in isolation of the dynamics intimated above. Whilst recognizing the intervention efforts that are currently in place, we should not be oblivious of the rising numbers of women who are constantly admitted in prisons for crimes committed in the context of domestic violence. Without being dogmatic, this situation obviously imposes an urgent demand to all the relevant structures to go back to the drawing board in search of a workable solution. If we are serious about preserving the rule of law in this country, whilst uprooting the elements of secondary victimization from our justice and correctional systems, we need to recognize the critical importance of collaboration, coordination and multi-disciplinary support in all intervention efforts.

Despite the progressive strides of democratic transformation, restoration and healing that South Africa proudly celebrates as successful achievements attained in its first decade of democracy, we are still a country that battles with the fears of rising levels of violent gender crimes. We serve communities that demand the toughest sentences for those convicted of violent crimes. We have not yet succeeded to create a society that understands the dynamics behind women who resort to criminal behaviours against their abusive partners. In spite of the various sensitisation-training programmes in place and for the purposes of considering lesser sentences in pre-meditated murders, not all sentences currently imposed embrace the critical need to investigate the substantial and compelling circumstances that lead these women to kill their abusive partners, despite the statutory obligation on courts to do so. The truth of the matter is that in every court decision-making process it is almost practically impossible for a prosecutor, judge or presiding magistrate to separate his/ her decision from one’s personal values, cultures and beliefs. For instance, if the personal values and cultures of a court official, who is tasked to make a decision in this instance, are ‘twisted’ and ignorant of the gruesome realities of living in an abusive relationship, then we ought to expect many of these women to serve life sentences.

In sentencing, the basic role of the prosecutor is to assist the court in arriving at a just and appropriate sentence. This role entails addressing the court in proven facts or evidence that is both favourable and unfavourable to the accused. However, in practice, and especially where the accused is legally represented, the defence usually addresses the court or leads evidence in mitigation of sentence.

Although nothing compels the prosecution to lead evidence in aggravation of sentence, the pressures of the public expectations and interests to see tough sentences being handed down on offenders makes it difficult not to do so. As Judge Broome once noted,

‘…To hear an address from the defence only may be very kind to the [accused], but it is not fair to the public, whose interests require that the offenders should be adequately punished.’

It may well be understood from this public expectation that it is also often difficult for the State to lead evidence in mitigation of sentence.

It may be necessary to mention at this stage that s 274 (1) of the CPA also gives the presiding officer discretion to receive and consider only the evidence ‘it thinks fit in order to inform itself’ as to the appropriate sentence to impose. What this means is that the fate of the accused on sentence is, in actual fact, in the hands of the presiding officer. However, that does not exonerate the prosecution from its responsibility to see to it that justice is not only done, but also seen and felt.

Having regard to the NPA-SOCA Unit’s mandate to protect the rights of women and children, whether they appear in court as complainants or accused persons, we consider it imperative to train our prosecutors to be considerate and heedful of the existing substantial and compelling evidence that justifies a lesser sentence in all cases, especially those involving women convicted of violent crimes against their abusive partners.

The search for alternative methods of sentencing in South Africa has been a matter of great concern both in the justice and correctional services sectors. From the perspective of the correctional services, the need for deterrent ‘out-of-prison’ alternative sentences is becoming more and more urgent in view of the increasing problem of prison overcrowding and the ever-escalating budgetary inadequacies of running these prisons.

On the other hand, courts are bound by the principles of sentencing, which require them to pass sentences that can be crime preventative and deterrent. From the eyes of the public, our courts also desire not to be seen as passing sentences that trivialises serious crimes.

Taking a brief look at the current alternative forms of sentence, one would realise that our law does provide for non-imprisonment penalties that can be considered in cases of abused women convicted of gender crimes. To mention, but a few:

Correctional supervision is a community-based sentence that can be handed down for any offence, even the serious offence of Murder. It can be a completely non-imprisonment sentence where the court, in sentencing the accused, releases him immediately to serve correctional supervision in the community. In some instances, correctional supervision may be a partly imprisonment sentence where the court sentences an accused to undergo direct imprisonment, a portion of which he/she may serve under correctional supervision in the discretion of the Commissioner of Correctional Services.

Before imposing this sentence, the general principles of fairness in sentencing require the courts to first consider:

• The personal circumstances of the accused,
• The nature of the crime, and
• The interest of the public.

In serious offences, correctional supervision has been found to be an appropriate sentence in some decisions in view of the fact that the public interests would outweigh the personal interests of the accused.

However, even where the imprisonment sentence has been imposed, in terms of the provisions of s 276A of the CPA, nothing stops the Commissioner of Correctional Services from intervening, and have those prisoners who qualify for correctional supervision released from incarceration. In this way, the DCS is empowered by CPA to act towards reducing its prison population, whilst relieving its budget from the unnecessary pressures. Even where women are unfairly incarcerated for domestic violence, DCS has a legal way to intervene, especially where children are involved.

Correctional Supervision where Women Have Killed their Abusive Intimate Partners

Whilst acknowledging the principles of the Constitutional respect for human life and dignity and the public interest to see that offenders are adequately punished, it will be a grave error to be oblivious of the impact of the dynamics of abuse in the perpetration of crime by women in abusive relationships when considering the appropriate sentence.

Correctional supervision needs to be considered in these cases to:

• Preserve the family unity and promote healing within the family, especially where children are involved.

• Rehabilitate the convict within the community. This will allow the convict to engage in rehabilitation programmes in stress-free and conducive environments. On the other hand, the community may have an opportunity to be exposed to the gruesome realities of domestic violence, and be encouraged to find solutions with the convict.

• Expose the convict to community services, preferably in shelters or safe houses where abused women are located. In this case, she can be instrumental in preventing potential offending.

• Allow the convict to provide for her family through employment.

• Give the convict a second chance to be a responsible and abiding citizen, etc.

Correctional supervision has, since the implementation of s 276A recorded its success stories. ‘In 1995, the Department of Correctional Services had 37 000 offenders passing through this system with 80 percent successfully completing the sentence.’- Amanda Dissel. However, certain harmful operational blockages have also since manifested. For instance,

• The procedure of imposing correctional supervision is often criticized of being unnecessarily lengthy and time-consuming.
• Correctional monitoring has been found to be difficult or impossible where the offender lives in informal settlements or has no fixed residential address.
• Some judges/ presiding officers are still sceptical of the deterrent effect of this type of sentence and the value attached to it by the communities. In some decisions it has been rejected on the basis of being trivial in nature.

However, the South African Appellate Division has also recorded very impressive decisions, which encourage the imposition of correctional supervision where women have killed their abusive intimate partners. For instance, after consideration of the history of abuse and its consequent dynamics and impacts on the accused, the Appellate courts in the three (3) leading cases of Potgieter, Larsen & Ingram found the imprisonment sentences imposed inappropriate, and remitted these cases to the respective trial courts for the consideration of the imposition of correctional supervision sentence in terms of s 276A (1) (a) of the CPA.

As NPA, we have realized that NOT all cases need to be prosecuted or taken through the often-lengthy criminal justice process, especially where:

• There is evidence to show that the criminal conduct of the accused may have been instigated by domestic violence, or
• The circumstances of the allegation are of a trivial nature.

In these instances where the accused admits her criminal liability, the diversion of this case from the court process becomes an attractive option.

However, presently the provision of s 6 of the CPA, which allows diversions to occur, has not yet been widely applied in domestic violence cases. The NPA-SOCA Unit is currently negotiating with NICRO to find ways of developing a programme that is specifically tailored for domestic violence offenders. We envisage that this programme will also accommodate those women who get arrested for beating their abusive partners. In this way, we will prevent many of them from landing in goals for such offences.

In Conclusion, on what has been intimated above, it clearly shows that this area of the law relating to matters of gender violence is evolving. In earlier times, considerations that currently inform decision-making within the CJS were unknown. This clearly indicates that we need to adopt an appropriate and different response in these matters. We need an approach that demonstrates the new understanding.

The examination of the various cases indicates that there cannot be a single bullet approach, and each case has to be examined on its own merits and demerits. This new knowledge must permeate to all levels of decision-making within the CJS- starting from whether or not to arrest, prosecute, convict or acquit, and up to whether to imprison or not. This new approach must mean that the Commissioner of Correctional Services must intensify the utilization of s 276 A to ensure the exposure of deserving imprisoned women to behavioural correctional outside the prison bars and walls.