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9 S. Afr. J. Crim. Just. 151 (1996)
Excuse Them Though They Do Know What They Do - The Distinction between Justification and Excuse in the Context of Battered Women Who Kill

handle is hein.journals/soafcrimj9 and id is 159 raw text is: Excuse them though they do know
what they do - the distinction
between justification and excuse in
the context of battered women
who kill
LORRAINE WOLHUTER*
1   Introduction
The incidence of domestic violence, and the homicides that are frequently
consequent upon it, have been subject to increased public scrutiny in contem-
porary 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 pertain-
ing 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 ofjustification 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.'2 In accordance with this
distinction, battered women who kill, but who do not comply with the
BA LLM (Cape Town). Lecturer in Law, University of the Western Cape.
Elizabeth M Schneider 'Particularity and generality: challenges of feminist theory and
practice in work on woman-abuse' (1992) 67 New York University LR 520 at 566.
2 G Fletcher Rethinking Criminal Law (1978) 759.

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