1 Introduction
Whether it be due to the ever prominent abuse of alcohol, or to the raging tempers due to everyday stresses of living in South Africa at the present moment, it can be said that perpetual domestic violence has found a place in our society, as those cases are increasingly being reported. The term ‘Battered Women’s Syndrome’ is used when referring to cases regarding a cycle of domestic violence, and through the course of this essay, this Syndrome will be investigated using a variety of sources - including South African and International case law - in order to discover whether, and to what extent, Battered Wives Syndrome constitutes a defence to a charge of murder in terms of South African law.
2 Battered Wives Syndrome
A battered wife can be defined as someone – not necessarily a woman – who is subjected to perpetual domestic violence over an extended period of time to the extent that the violence develops into a cycle. This means that the abused is never sure when or where the next attack will take place.
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Criminal incapacity can take the form of either pathological or non-pathological incapacity. For purposes of this paper, the focus will be on non-pathological incapacity, specifically in the form of provocation and emotional stress. The law recognises that provocation in the form of a cycle of domestic violence can be seen as a mitigating factor to the killing of the abuser by the abused, such as in the case of State v Ferreira. This means that owing to the cycle of abuse suffered, the accused acted as a result of provocation and emotional stress, even when there was no present threat. This in turn, can be seen to negate criminal capacity which means that the accused will either be acquitted or ordered to serve a lighter sentence due to BWS being a mitigating