Provocation as a defence in English and South African criminal law

In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty

Defences available to battered women who kill their abusers : a comparative analysis.

Thesis (LL.D.)-University of KwaZulu-Natal, Pietermaritzburg, 2009.Private defence is the civilized remnant of the ancient system of private vengeance as redress for wrong done. The Romans, in permitting self-help formulated the principle moderatio inculpatae (moderation in self-defence) which the European jurists later relied upon to develop a coherent doctrine of private defence. Certain types of intentional killings were no longer regarded as unlawful and therefore are not punished as murder. South African recognizes that killing is justifiable and therefore not murder. Despite the sound rationale underlying the defence, namely the upholding of justice theory where people acting in private defence perform acts where they assist in upholding the legal order, and despite the fact that the defence is established in both criminal law legal theory and practice, there are threshold problems with this rationale which has been subject to much academic criticism. Such criticism must be seen in the context of the wider debate surrounding the circumstances in which battered women kill their abusers - normally in circumstances where the threat is not imminent and therefore the need to uphold justice is not necessary. The purpose of this enquiry is to examine the development and functioning of the defence and more particularly to do so in light of a comparison with the means currently utilized to criminalize conduct falling outside the bounds of self-defence: one of the parent systems of South African law, namely English law and the United States, where battered woman syndrome originated and a profound influence on the way in which the elements of the defence are interpreted in that jurisdiction. For instance, in American law subjective tests for self-defence have been developed such as the particularizing standard. This standard asks whether a reasonable person with the accused’s particular non-universal characteristics would have both perceived the situation as the accused perceived it and would have reacted to that perception by committing the accused’s self-defensive act. If the answer is yes, then the act is considered reasonable. It assumes that individuals freely choose how to perceive and respond to a threatening situation but also acknowledge that certain kinds of nonuniversal characteristics (such as battered woman syndrome) exercise such a powerful causal force on individuals perceptions and actions that it would violate the voluntary act requirement when holding that individual who possess such a characteristic to a standard of conduct that does not take that characteristic into account. The study concludes with an assessment of the form the defence ought to take. In South African law the defence consists of the conditions relating to an attack which includes: an attack, and protected interest and the attack must be unlawful. In respect of the conditions relating to the defence, the defence must be reasonably necessary to avert the attack and the defence must be directed against the attacker. Aspects of these elements have proved to be controversial. In particular, the condition of reasonably necessary to avert the attack has been called into question. Furthermore the requirement of imminence has been rendered especially controversial especially when viewed from the battered woman’s perspective where battered woman syndrome plays a role i.e. the woman’s internal makeup having an influence on the way she views the situation as opposed to an objective test is used to establish if the threat was imminent. While the English and American law elements of the duty to retreat, proportionality and reasonableness approximate the equivalent condition of reasonably necessary to avert the attack, the focal point of this defence in these jurisdictions has similarly been the imminence requirement and the test utilized for self-defence i.e. objective or subjective standard. Prior to evaluating the utility of these elements, the various rationales posited as a justification for the defence will be examined. It is submitted that while various rationales have been posited to form the basis of selfdefence, the autonomy theory (narrowly circumscribed) should be followed in South African law and that the traditional elements for self-defence should remain in force. Regarding the requirement that the attack be reasonably necessary, it is submitted that the traditional mechanism for distinguishing justified from unjustified self-defensive acts should remain an objective test. This is so because by taking account of the knowledge the defender has of her attacker the legal requirements of private defence will eventually be equated with those required for putative self-defence. If putative selfdefence goes to the issue of culpability, which is seen as a particular mental attitude or state of mind - South African law will be evincing a move toward a normative concept of fault. Such an approach has not proved unproblematic in South African law. Both early and modern common law as well as modern case law has expounded a coherent statement of the elements of self-defence which include imminence as a core feature. The problem is that traditional imminence rules do not cater adequately for the battered woman’s situation and for this reason theorists have advocated its abolition. The obvious problem with such a recommendation is that something must stand in its stead to distinguish legitimate cases from illegitimate cases of self-defence. In respect of the imminence requirement, the problems created by this standard cannot be solved by replacing imminence with necessity or by claiming priority for necessity or by demanding that imminence means pacifist rather than the libertarian version of necessity. These positions pose the question but do not answer it. Furthermore, if the imminence question cannot be answered by assuming one side of the necessity debate, then it cannot be answered by referring to the distinction between justification and excuse. It is submitted that “instead of viewing objectivity as not being able to account for battered woman’s situation – the opposite conclusion should be reached – that by rethinking certain situational factors as a set of relatively innocuous and perhaps necessary normative propositions then the abused woman’s situation is consistent with some very standard propositions in the law of self-defence. If the abused women is being attacked and the threat is imminent (in the traditional sense), then she should be able to avail to herself of self-defence, although it should be noted that the court should also consider the fact that the battered women placed herself in this dangerous situation. However, the court would also have to take into consideration the difficulty that the abused woman faced in extricating herself from this position. On the basis of a discussion of the various construals that inform the question of whether proportionality should form a necessary requirement for self-defence, including (i) the liberal aspiration to neutrality, (ii) constitutional norms and (iii) a duty of social solidarity to the state, it is submitted that proportionality should form an integral part of the requirements for self-defence. The test can be set out as follows: not only must the defence be necessary but also the means used by the accused for the purpose of averting the attack must be reasonable in the circumstances. This is in accordance with the autonomy theory. Therefore, would an “ordinary, intelligent and prudent person in the accused’s situation would react to establish if the self-defence claim was justifiable. However, it is submitted that not all the characteristics of the accused should be taken into account. Only those “characteristics which have the most (or direct) bearing on the accused’s situation” should be considered. Despite the rationales underlying self-defence, it has not been entirely clear whether an abused woman is expected to flee. It is submitted that there should be a duty to retreat. In the case of the abused woman, her situation is adequately catered for within the reasonableness neutrality perspective. In respect of the defence of provocation, Roman and Roman-Dutch law did not regard anger, jealousy or other emotions as an excuse for criminal conduct, but only as a factor which might mitigate sentence, if the anger was justified by provocation. South African law with its parent system in Roman-Dutch law might have followed this lead had it not result of the Transkei Penal Code of 1887, it envisaged a type of a partial excuse: even if been for the introduction of the mandatory death penalty for murder in 1917. In 1925 as a killing was intentional, homicide which would otherwise be murder maybe reduced to culpable homicide. The test for provocation was thus an objective one. By 1949 in R v Thibani it was held that provocation was not a defence but a special kind of material from which in association with the rest of the evidence the court should decide whether the accused had acted involuntary or without intent to kill. This introduced a subjective test for provocation. But a number of crucial issues remained unresolved; could intense provocation or emotional stress serve to exclude criminal capacity or voluntary conduct. After the decision in Chretien, the question arose, if severe intoxication could exclude these basic elements of liability then could it not also exclude provocation or emotional stress. At this point, the notion of criminal capacity came to the fore. This notion was unknown in South African common law and was adopted from Continental Legal systems, specifically Germany. The notion took hold with the Rumpff Commission of Inquiry into the Responsibility of Deranged Persons and Related matters, the recommendations of which gave rise to the provision of section 78 (1) of the Criminal Procedure Act. In S v Mahlinza set out that criminal capacity of actor is an essential requirement necessary to establish criminal liability. Criminal capacity consists of cognitive component i.e. ability to distinguish between right and wrong and conative capacity i.e. the ability to act in accordance with the distinction. If either was lacking no liability would ensue. In S v Van Vuuren, the court expressed in unequivocal terms that the accused could not be held liable where failure to comprehend what he is doing is attributable to a combination of factors such as provocation or emotional stress. The very idea of allowing provocation to function as a defence excluding an accused’s criminal liability is inherently controversial. From a moral and ethical perspective people are expected to control themselves, even under provocation or emotional stress. To allow it to function as a complete defence as opposed to mitigating factor means that it gives credence to the belief that retaliation is justified in the eyes of the law and this is the very thing criminal law guards against. Despite the well established nature of the defence of non-pathological incapacity, the law has been thrown into flux by the decision of the Supreme Court of Appeal in S v Eadie which constituted a serious erosion of the notion of criminal capacity, with a concomitant “ripple effect” on other topics within the general principles of criminal law. The question this case has highlighted for South African law of non-pathological incapacity is whether the boundaries of the defence have been inappropriately extended. This is so since the court held not only that there is no distinction between the defence of automatism and nonpathological incapacity, and that it would have to be established that the accused acted involuntarily in order for her defence of lack of capacity to prevail, but furthermore held that the court should assess the accused persons evidence about his state of mind by weighing it against his actions and surrounding circumstances, thereby introducing an objective test. Theorists such as Burchell have considered this move “bold” and “encouraging” for its emphasis on objective norms, and the fact that it brings it into line with both the English and American jurisdictions, where not only is an objective element introduced into the enquiry, but where loss of self-control is not totally excusable since the law assumes that provoked party was not totally incapable of controlling anger. If an accused was unable to control himself, a full excuse would be defensible. The notion of capacity has its approximate equivalent in the English and American law of provocation where the jury must consider the subjective question of whether the accused was actually provoked to lose self-control, the defence requires that a reasonable person in the same circumstances would have lost-self control and acted as the accused did. The South African notion of capacity is examined with reference to the way provocation is treated in these jurisdictions. Should non-pathological incapacity be equated with automatism, the established precedent in provocation and other cases of non-pathological incapacity would have to be revised by implication, and would have serious implications for the principle of legality and restricting the scope of the defence for battered women. Furthermore, it is submitted that a move towards an objective test should not be followed. This is so since such an approach does not extend to encompass the battered woman’s mental and emotional characteristics including recognized psychological disorder symptoms. This results in the court not having any meaningful way to determine whether the battered woman lost self-control and furthermore it will lead to increasing attention being directed at how far the objective test be tailored to fit the capacity of the accused. The problem with the capacity test is that it has created via the Criminal Procedure Act a new element of liability by drawing from both the general physical and the mental liability enquiries. Therefore, by duplicating the voluntary act requirement under mens rea, the courts have asked the same question twice. Once the accused is shown to be acting voluntarily, there will be a measure of goal-directed conduct. Where goal-directed conduct is present, it necessarily implies that here must be a level of capacity present in the case of the defence of non-pathological incapacity. In other words, the question is not whether capacity is present, but to what extent it is present. This point is not acknowledged by our courts: the concept of psychological fault underlying South African law offers no explanation for the fact that culpability is capable of gradation. The effects of battering could be used to support a defence of diminished capacity, which focuses not on mitigating circumstances of the act, but rather on the actor’s inability to form the requisite mens rea for the offence charged. However, the introduction of such a defence could only be achieved by returning to the rules relating to provocation followed in South Africa prior to 1971. According to the specific intent doctrine, policy considerations require that an accused should not be completely acquitted. However, these considerations require that an accused should not be completely acquitted. However, these considerations also require that an accused not be convicted of murder but of culpable homicide. This compromise solution (of culpable homicide) can only be reached by treating provocation as a special defence, one which is not strictly adjudicated in terms of the general principles relating to culpability (mens rea). Furthermore, it is submitted that a subjective test must be applied, since Snyman’s objective-subjective test leads to an illogical confusion between the subjective and objective elements

Affect of Cold Pressor Stress on Glycemic Response of Healthy College Aged Subjects

Stress is associated with type 2 diabetes and acute stress could alter glycemic response. Physiological effects of cold presser stress (CPS: n=40) and control (no CPS; n=43) on g!ycemic and cardiovascular response to a 50 gram oral glucose tolerance test drink (OGTT) was examined in healthy humans (18±10 years). CPS consisted of three 30-second ice bath immersions of the left arm 10 min pre-OGTT (0 min). then 10 and 20 minutes post-OGTT. Blood glucose for control and CPS at -15. 0, 30, 60, 120 min was 89. 7±9. 0. 91. 0±8. 7, 154. 2±21. 5, 138. 8±32. 7, 96. 4±19. 1 mg/di and 90. 2±7. 7, 89. 0±6. 4, 156. 2 ±21. 4, 134. 7 ±24. 2, 98. 3±21. 4 mg/d I respective I y (Pc-: 0 79). Systo I i c, diastolic, and mean arterial pressure changes were not statistically significant between treatments. Heart rate diminished across time in both treatments (P= 0.02) although no significant difference was observed between groups. CPS was not associated with significant changes in glycemic and cardiovascular function. However, longer ice bath immersions may promote a greater degree of stress that could be associated with aftered glycemic response and cardiovascular function in future studies. I was able to present this poster on Tuesday, Apri I 29u, at the American Society of Nutrition poster presentations. TC Curtis, SP Krause, KK Schmit, F Ragsdale. T Wi fson. Effect of cold pressor stress on glycernic response of healthy college aged subjects. FASEB J. 148316·-EB (In Press

Wetland agroecoystems in the Maya Lowlands of Belize : LiDAR and multi-proxy environmental change

Globally, scholars have identified wetlands as critical environments for global carbon storage, water filtration, biodiversity, and many other ecosystem functions. Despite their importance, too few studies have focused on wetlands in the tropical Americas. This dissertation provides new and innovative knowledge on the extent and character of prehistoric indigenous wetland agricultural systems in the Maya Lowlands of Belize by exploring wetland development and paleoenvironmental change over the course of the late Holocene. The overall results of this project are as follows: provide new information and understanding of never before researched wetland agroecosystems; 2. determine the extent of human and environmental interaction and regional climate history in this crucial zone of the Neotropics, 3: answer questions concerning the scale and types of Maya to modern wetland management over time; 4: offer greater awareness concerning contemporary landscape degradation within critical wetland systems in the face of future climate change scenarios, and 5. provide future resources for policy and management of American wetlands as a critical geographic area.Geography and the Environmen

From dropping out to dropping in: exploring why individuals cease participation in musical activities and the support needed to reengage them

Continued participation in music has been associated with well-being outcomes, yet many either fail to begin or cease musical participation after limited exposure. The current research examined why individuals cease participating, focusing on identifying barriers to participation and the support needed to re-engage in musical activities. A sample of 190 Australian residents (Mage = 26.87; 75.80% female) who had ceased previous musical participation completed an online questionnaire in which they rated the degree to which 15 items reflected their reasons for ceasing musical participation and answered an open-ended question regarding their requirements for re-engagement. An exploratory factor analysis of the quantitative responses identified four components relating to cessation: “Access and Opportunity,” “Activity Experience,” “Obligations,” and “Difficulty with Practicing.” A Grounded Theory analysis concerning the support required for re-engagement indicated four key themes: “Personal Investment,” “Requirements of the Musical Activity,” “Personal Qualities,” and “No Interest in Re-Engagement.” Collectively, these results provide an indepth understanding of factors external to music itself as influences on continued musical participation. With implications for facilitators and educators, these results suggest a need for collaboration and interaction between music facilitators and participants

Ancient Maya wetland fields revealed under tropical forest canopy from laser scanning and multiproxy evidence

Understanding agricultural subsistence is vital for understanding past complex societies. Lidar data are indicating widespread ancient Maya infrastructure. Wetland agriculture was crucial to ancient cultures, but no previous study coupled lidar with multiproxy evidence to demonstrate the extent and uses of Maya wetland fields. We conducted a lidar survey around wetlands that multiple use proxies established were ancient Maya polycultural systems. Lidar indicated the Birds of Paradise (BOP) wetland field complex was five times larger than we had previously mapped and identified an even larger wetland agroecosystem. We ground-verified the BOP fields through excavations and dating, creating a study to couple these multiproxy data with lidar, thereby demonstrating widespread ancient Maya wetland agroecosystems.We report on a large area of ancient Maya wetland field systems in Belize, Central America, based on airborne lidar survey coupled with multiple proxies and radiocarbon dates that reveal ancient field uses and chronology. The lidar survey indicated four main areas of wetland complexes, including the Birds of Paradise wetland field complex that is five times larger than earlier remote and ground survey had indicated, and revealed a previously unknown wetland field complex that is even larger. The field systems date mainly to the Maya Late and Terminal Classic (∼1,400–1,000 y ago), but with evidence from as early as the Late Preclassic (∼1,800 y ago) and as late as the Early Postclassic (∼900 y ago). Previous study showed that these were polycultural systems that grew typical ancient Maya crops including maize, arrowroot, squash, avocado, and other fruits and harvested fauna. The wetland fields were active at a time of population expansion, landscape alteration, and droughts and could have been adaptations to all of these major shifts in Maya civilization. These wetland-farming systems add to the evidence for early and extensive human impacts on the global tropics. Broader evidence suggests a wide distribution of wetland agroecosystems across the Maya Lowlands and Americas, and we hypothesize the increase of atmospheric carbon dioxide and methane from burning, preparing, and maintaining these field systems contributed to the Early Anthropocene.Office of the VP for Researc

Neighbourhood cohesion and mental wellbeing among older adults:A mixed methods approach

There is now a body of evidence that demonstrates strong links between neighbourhood characteristics and mental health and wellbeing. There is an increasing interest in how this relationship varies for individuals of different ages. Understanding the link between neighbourhood and wellbeing for older adults is of particular significance, given the changing age structure of the population and the desire among policy makers and practitioners to promote healthy and active ageing. This paper provides further evidence on the nature and strength of the link between individual perceptions of neighbourhood belonging and mental wellbeing among those over age fifty using both qualitative and quantitative data from three British cohort studies. Between 2008 and 2011 quantitative data were collected from 10,312 cohort members, and 230 of them took part in qualitative biographical interviews.Quantitative analysis confirms that there is a moderate association between neighbourhood cohesion and wellbeing measured at the individual level in each of the three cohorts. This association persists after controlling for a range of covariates including personality. The association between neighbourhood cohesion and wellbeing is stronger for individuals in the older two cohorts than in the younger cohort.Using qualitative biographical interviews with 116 men and 114 women we illustrate how individuals talk about their sense of neighbourhood belonging. The importance of social participation as a mechanism for promoting neighbourhood belonging, and the use of age and life stage as characteristics to describe and define neighbours, is clear. In addition, the qualitative interviews point to the difficulties of using a short battery of questions to capture the varied and multi-dimensional nature of neighbourhood relations.<br/

PNU-120596, a positive allosteric modulator of α7 nicotinic acetylcholine receptors, reverses a sub-chronic phencyclidineinduced cognitive deficit in the attentional set-shifting task in female rats

yThe α7 nicotinic acetylcholine receptors (nAChRs) have been highlighted as a target for cognitive enhancement in schizophrenia. Adult female hooded Lister rats received sub-chronic phencyclidine (PCP) (2mg/kg) or vehicle i.p. twice daily for 7 days, followed by 7 days’ washout. PCP-treated rats then received PNU-120596 (10mg/kg; s.c.) or saline and were tested in the attentional set-shifting task. Sub-chronic PCP produced a significant cognitive deficit in the extra-dimensional shift (EDS) phase of the task (p < 0.001, compared with vehicle). PNU-120596 significantly improved performance of PCP-treated rats in the EDS phase of the attentional set-shifting task (p < 0.001). In conclusion, these data demonstrate that PNU-120596 improves cognitive dysfunction in our animal model of cognitive dysfunction in schizophrenia, most likely via modulation of α7 nACh receptors.This work was partially funded by Johnson & Johnson Pharmaceutical Research and Development

Strengthening Peer Mentoring Relationships for New Mothers: A Qualitative Analysis

(1) Background: The transition to motherhood can be challenging, especially for first-time mothers, and can accompany maternal distress. Social support—such as that offered by peers— can be important in assisting mothers to manage such distress. Although primiparous mothers often seek out and value peer support programs, few researchers have investigated factors that may influence the strength of relationships in non-professional maternal peer support programs. Insight into these factors can be key to enhancing the success of future peer support interventions. (2) Methods: Reflexive thematic analysis was applied to data gathered from 36 semi-structured interviews conducted with 14 primiparous mothers and 17 peer mentors in a peer support program. (3) Results: Four themes related to successful mentorship were identified: expectations of peer relationship, independence of peer mentor, contact, and similarities. (4) Conclusions: For primiparous mothers who are developing their support network, these factors appear important for promoting close and effective peer support relationships. Interventions that harness the dynamics between these factors may contribute to more successful peer support relationships and mental health outcomes for participants