Oscar’s vulnerability is relevant to case, says expert

2014-03-02 06:00

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Can a court see Oscar Pistorius – a double amputee – as “the reasonable man” in the situation that caused Reeva Steenkamp’s death?

Experts tell City Press that his disability has to be taken into consideration when judging whether or not he is liable for Steenkamp’s death, especially now that the state has conceded he was not wearing his prosthetics on the night of her death.

“His vulnerability is relevant to both the murder charge and the alternative of culpable homicide,” said Professor Jonathan Burchell from the University of Cape Town, one of the country’s leading criminal law experts.

“If someone is particularly vulnerable because he is on his stumps, that will affect what he foresees, and whether he foresees that he’s acting unlawfully. It would make him more jittery, so that his responses might be affected by his vulnerability,” he said.

He said when courts judge someone by the standard of “the reasonable person”, they also take cognisance of their physical disabilities and other vulnerabilities.

“As I understand it, one of the defences will be that Pistorius genuinely believed there was an intruder in the house, and that he was shooting at that intruder.

“If it transpires that there was no evidence to support a break-in, his defence would have to be that he genuinely thought that he was acting in defence of himself and in defence of Reeva Steenkamp.”

In order to use this defence, according to Burchell, Pistorius’ legal team would have to demonstrate what his mental state was at the time of the crime, and the best way to do this would be to put Pistorius in the witness stand.

Professor Gerhard Kemp from Stellenbosch University said the actions of the hypothetical “reasonable man” did not apply to murder charges, but they did in cases of culpable homicide.

“In the case of a murder charge, it is irrelevant whether or not the person acted ‘reasonably’. The question is: what was his intent?

“If he then said he had the intent to kill, but in self-defence, then the question is still not what the reasonable person would have done; the question is whether, objectively seen, there were circumstances that comply with an attack that justifies self-defence,” he said.

“In cases of culpable homicide, courts look wider than just the objective facts of a crime; they also look at any circumstances that would provide context to those facts. In principle any circumstances can be raised to explain why an accused acted in a particular way.

“The question is whether a reasonable person in the same circumstances would have acted the same way, and is the reasonable person someone able-bodied or not? We cannot know how much weight the court would lend to his disability as it is impossible to know beforehand how the defence would present his case.”

Dr Ashraf Jedaar, a former state forensic psychiatrist now in private practice, said Pistorius was not a paraplegic, but “a bilateral below knee amputee with intact neurological functioning above his amputations”.

“He had adapted excellently to his disability as evidenced in his championing of the rights to compete in mainstream athletics and para-athletics alike. Is this the image of a poorly adjusted and vulnerable individual?”

Jedaar said in order for an accused to argue that he committed a violent act because of post-traumatic stress disorder, he would have to had been exposed “to a previous potentially life-threatening event resulting in reliving of the experience, such as flashbacks, nightmares, avoidance of any associations with the incident or numbing of emotions, and finally a hypervigilance of his environment, and being easily startled, often complicated by depression or anxiety”.

“The fundamental question is whether he had indeed suffered with such an event and his processing and adjustment subsequent to the event.”

The South African legal system does factor mistaken beliefs into determining whether an accused could be guilty of murder or culpable homicide.

In 1992, the Supreme Court of Appeal found a man guilty of culpable homicide instead of murder for killing a two-year-old boy. The man had suddenly awoken and mistook the child for a tokoloshe (evil spirit).

The court accepted that a “reasonable person” of his background and education would believe in such things, but found that he did not take reasonable steps to make sure that his victim was not an evil spirit.

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