The Oscar Pistorius Conviction: A Victory Over Gender-Based Violence?
In a ruling delivered by South Africa’s Supreme Court of Appeal this week, the court has overturned the Pretoria High Court’s culpable homicide finding and has found popular athlete, Oscar Pistorius, guilty of the murder of his girlfriend Reeva Steenkamp. The court sums up the background facts of the case as follows:
“The case involves a human tragedy of Shakespearean proportions: a young man overcomes huge physical disabilities to reach Olympian heights as an athlete; in doing so he becomes an international celebrity; he meets a young woman of great beauty and a successful model; romance blossoms; and then, ironically, on Valentines’ Day, all is destroyed when he takes her life. The issue before this court is whether in doing so he committed the crime of murder, the intentional killing of a human being or the lesser offence of murder, the negligent killing of another.”
As we commemorate 16 Days of Activism Against Gender-Based Violence , this conviction does bring a glimmer of hope for those fighting against violence against women and girls, particularly in Zimbabwe whose legal foundations are comparable to those that South Africa was founded upon. It therefore bears noting the reasons behind why the judgment was made and to consider the implications for women.
The question that the Supreme Court of Appeal convened to answer was this: did Pistorius intentionally kill Steenkamp? In the High Court hearing, the prosecution and defence agreed on the fact that Pistorius had killed Steenkamp. This was not at issue. Judge Thokozile Masipa’s ruling turned on the question of intention, dolus, and as you will see, this is the basis upon the Supreme Court of Appeal overturning the previous conviction of culpable homicide.
Incorrect application of dolus eventualis and oversights
Without bogging you down with all the dreary details, simply put, where a person is convicted of murder on the basis of dolus eventualis, it means that the perpetrator foresees the possibility of his actions causing death but goes ahead and does it anyway. The Supreme Court of Appeal emphasised the fact that the requirement here is not the ‘probability’, but rather the ‘possibility’ of death. In Pistorius’s case, if he was going to be convicted of murder, the evidence would have to show that he foresaw that his shooting through the toilet door could possibly cause a person’s death and he did it anyway.
Judge Masipa’s ruling was based on the conclusion that Pistorius did not foresee that his actions would lead to the possibility of Steenkamps’s death and that was the reason given for the conviction of negligent (unintentional) killing. This is the point where we have to pay close attention to the Supreme Court of Appeal’s judgment. According to the Supreme Court, when applying the principle of dolus eventualis, the identity of the person is irrelevant. Applying this to Pistorius’s case, it did not matter whether Pistorius thought the person behind the door was Steenkamp or an intruder. Dolus eventualis did not require that Pistorius know the identity of the person behind the door. What is relevant is that Pistorius foresaw that his actions would kill the person (Steenkamp or whoever) behind the door and he did it anyway.
The Supreme Court of Appeal was of the view that all the evidence before the court must be considered and Judge Masipa failed to deal properly with the circumstantial evidence presented. For example, evidence from the police that the toilet was very small and the shots fired would have inevitably hit the person in there would go towards showing that Pistorius foresaw that his actions could possibly kill the person in the toilet. The Supreme Court of Appeal found that the court’s failure to deal with all the evidence was an error in law and this was the second point on which the High Court’s ruling was overturned.
One of the defences that Pistorius raised was that he fired the shots in defence, what is called ‘putative private defence’ or what is also called self-defence. In order to rely on this, Pistorius had to prove that he acted in the way that he did because he believed that his life was in immediate danger. Here, the court found that the evidence shows that the person behind the door did not cause an immediate threat and Pistorius fired no warning shots before firing through the door.
The defence therefore failed.
Do we care more because they were white?
It is undeniable that people’s interest in the case, the media presence and the various social media storms, had everything to do with the fact that this was a Hollywood movie (or if you like, a Shakespearean tragedy) playing out in real life. The heroic Olympian and his beautiful model girlfriend with one more very obvious point; the lead characters were white.
In studies conducted in the USA, researchers found that people (regardless of their race), assume that blacks feel less pain than whites. This means that people may perceive violence against a black woman as less injurious than violence against a white woman. It is not a case of people caring less about black people, but is a complex combination of factors that lead us to perceive black people as being able to withstand more pain than white people can.
So why do we perceive black women as less vulnerable to pain than white women? One of the factors that contributes to this is the hardship that black women go through. We think of black women as ‘strong’ and ‘resilient’. We glorify their struggles. The research points out that it may seem complimentary at first but can lead to dangerous consequences, including, in my view, the trivialisation of violence against black women.
These perceptions are real and they affect society’s attitudes towards domestic violence and femicide. Pistorius’s conviction does very little to change that perception.
The struggle continues in Zimbabwe
Pistorius’s conviction brings to the fore issues related to gender-based violence and the timing of it is a great opportunity. It is a victory for justice only to the extent that the rule of law was upheld and the possibility of Steenkamp’s family getting some closure was opened. But for the majority of women in Zimbabwe, South Africa and the rest of the world, the struggle continues.
According to a study done by the World Health Organization (WHO) and London School of Hygiene and Tropical Medicine, 35% of murders of women are reported to be committed by an intimate partner. But the true statistic is much higher than what the figures suggest as available research can only provide a limited view. In most countries around the world, when homicide cases are reported, they very rarely capture what the relationship between the victim and the perpetrator, or gender-related motivations for the murder, were.
Obtaining data on conviction rates in gender-motivated violence cases in Zimbabwe is a futile exercise. Despite the fact that international estimates show that a disproportionate number of women are killed by intimate partners, compared to men (only 5%), the criminal justice system does not treat what is obviously an endemic issue with the gravity that it deserves. Femicide and violence against women and girls is not just an issue for feminists or activists or the police; it is everyone’s problem.
In Zimbabwe, the Domestic Violence Act, enacted in 2007, has gone some way towards ensuring that justice is served. But this is not enough. Deeply-seated attitudes need to be identified and challenged. Discrimination and inequality need to be addressed in our communities. The toxic environments that breed violence against women and girls must be transformed before we can see an end to the indifference and trivialisation.
And before we can say that any progress has been made, we need to address our community’s attitudes first. Women need to stop teaching newlywed wives that her husband beats her because he loves her. The police must stop treating acts of domestic violence as minor offences. Crimes against women and girls must be treated with the seriousness that they deserve.
And yet this ongoing struggle will not be televised, or syndicated. And it may never be a trending topic. But it is no less urgent because the victims are generally not racially or financially privileged.
Main image taken from www.express.co.uk