By Joanne Fedler

This extract is from Tshwaranang's National Legal Manual for Counsellors of Abused Women which will be published in 1998. Statics reveal that men who commit femicide are sentenced more leniently than women who kill their abusers. Our courts seem to view defences of provocation with greater sympathy when raised by an abusive man, than an abused woman. We need to question this disparity. Women who kill their abusers face a number of gender biases in the legal system.

• Firstly they are seen as "unfeminine' because they have defied gender stereotypes of passive woman, by using force.
• Secondly, they are viewed not as victims but as perpetrators. Violence committed against them is overshadowed by violence they have perpetrated.
• Thirdly, their behaviour, is often is often irreconcilable with a judge's notion of reasonable conduct.

A defence of provocation says: 'I was so overwhelmed, emotionally by his threats or attacks, that my sense of self disintegrated completely and I acted completely out of control.' By using provocation is to rely on stereotypes of battered woman as acting irrationally or unreasonably. In order to succeed in a defence of provocation, the woman will have to show that she lacked self control. The courts will not lightly infer this. Provocation can also be used as a ground for mitigation of punishment on the basis that a crime committed impulsively is morally less blameworthy than one committed with premeditation.

This is in situations where the reasonable person in the woman's position would also have become enraged. The test for provocation is subjective; how did the particular women given her personal characteristics and temperament react. It is advisable to lead evidence of someone who knows her intimately to testify to the effect of abuse on her state of mind. We must be cautioned in the use of provocation as a defence; provocation is a dangerous defence, because if provocation is successfully proven, the court may find that far from destroying her self control, it confirms the presence of her intention to kill by giving her the motivation.

A defence of self or private defence asks the court not to view an intentional killing as unlawful act. The accused is saying, 'I was fully in control of my actions when I killed this person, but my behaviour was justified.' The test for self defence is objective; how would the reasonable man in her situation have reacted? The rigorous test for proving self defence is often unusable by abused women because they often cannot prove that the attack on them was imminent and had begun (one of the requirements of proving self defence) because there is often a lag in time between the last incident of abuse and her killing him. Women often fail to convince the court that the means they used was reasonable and not disproportionate to the attack because they often attack the abuser when he is asleep or his back is turned.

Tips for Counsellors assisting battered women who have killed their abuser: You must ensure that expert evidence (either a social worker or counsellor who has worked with battered women over a reasonable period of time) to explain why she did not leave, demonstrate reasonableness of her perception of harm and to explain to the court how learner helplessness can lead to aggression.

Expert evidence has been accepted and in Holtzhauzen v Roodt 1997 (3) SALR 551 (a defamation case where an alleged rapist sued the victim for telling people he had raped her), Justice Satchwell accepted expert evidence of a counsellor on the subject of rape trauma syndrome, "I am of the view that it would be unwise and it would be irresponsible for myself to as a judicial officer, who is lacking in special knowledge and skill, to attempt to draw inferences from facts which have been established by evidence, without welcoming the opportunity to learn and to receive guidance from an expert who is better qualified than myself to draw the inferences which I am required myself to draw."

This case can be used by organisations in the future to convince prosecutors and magistrates that expert evidence on battered woman syndrome is relevant. Gender bias between men and women who murder their partners is real in our judicial system. Two recent cases are illustrative of this; The husband of Yvonne Ramontoedi who shot and killed her at the Maintenance office, was sentenced to 3 years correctional supervision, to be served in 20 hour instalments each month over the weekend. Elizabeth Boucher shot her husband, after he allegedly he s threatened her with a firearm. She was sentenced to 13 years and leave to appeal was denied, as the judge refused to believe her testimony of abuse and the attack on her life on the night in question.