The South Africa criminal law allows the battered woman to raise a battered woman syndrome defence in the context of non-pathological criminal incapacity. However, there is a need of expert evidence to support such defence for it to succeed in the court of law. Hence, this paper scrutinizes the task of expert evidence in support of the battered woman syndrome in order to reach the extent of its effectiveness. Nevertheless, such evidence is not indispensable but without it, the court hardly gets persuaded resulting into the failure of the defence. The meaning of battered woman syndrome is articulated in the paper as well as the fact that battered woman syndrome defence falls under the defence of non-pathological criminal incapacity. The origin and development of the non-pathological criminal incapacity has also been discussed by comparing it with pathological criminal incapacity which emanates from mental illness while the former does not originate from a mental illness. Psychiatrist are in a better position to understand the latter while psychologists are in a better position to understand the former, hence it is advisable if the court pays more attention or attach more weight to the evidence given by the psychologists if this defence is to succeed and have a brilliant future. Moreover, the possible defences available to the battered woman have been mentioned as well as the cases that used non-pathological criminal incapacity as a defence particularly with regard to the battered woman syndrome defence. Both cases that were successful and unsuccessful have been elaborated. However, the cases that failed with the defence are in large numbers than the successful ones. Although expert evidence is essential to support the battered woman syndrome defence, it is unjustly and unfairly applied on the battered woman who is an accused person in the court leading to the failure of the defence .In short the use of expert evidence has failed in its application as the two professions, law and medicine has failed to make this defence work as they have not reached an agreement concerning the battered woman syndrome defence. In addition, the paper looks at the obstacles linked with the battered woman syndrome defence as well as offering suggestions to be put in place in order to make the use of expert evidence achievable. This can only be done if both the lawyers and mental health professionals come to terms with each other where they are able to understand the battered woman syndrome and the actions which led to the situation where battered woman finds herself as an accused person. Finally, the paper concludes that expert evidence has failed tremendously in its application leading to the failure of the battered woman syndrome defence in the context of non-pathological criminal incapacity. Consequently a lot still needs to be done to protect the women who face numerous obstacles; both personal and legal as they do not face justice in court and everyone must take part to put an end to battering of women which is inhuman and morally wrong. / Dissertation (LLM)--University of Pretoria, 2012. / Public Law / unrestricted
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:up/oai:repository.up.ac.za:2263/31640 |
| Date | 28 August 2013 |
| Creators | Shaba, Flora |
| Contributors | Carstens, Pieter Albert, 1960- |
| Publisher | University of Pretoria |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Dissertation |
| Rights | © 2012 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria |
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