I would tentatively suggest that we are witnessing the first signs that the category of the transsexual might one day, as the ultimate act of emancipation, abolish itself. In ‘Women’s Time’ (1981), Julia Kristeva argued that feminists, and indeed the whole world, would enter a third stage in relation to sexual difference: after the demand for equal rights and then the celebration of femininity as other than the norm, a time will come when the distinction between woman and man will finally disappear, a metaphysical relic of a bygone age.
The acquittal of Oscar Pistorius on a murder charge on Thursday (he may yet be convicted of culpable homicide) has puzzled some lawyers. This is why.
It did not come as a big surprise that Judge Thokozile Masipa found that the state had not produced sufficient evidence to prove beyond reasonable doubt that Oscar Pistorius intended to shoot and kill Reeva Steenkamp allegedly hiding behind the toilet door in his house “in a prestigious gated community in Pretoria”.
Although Judge Masipa highlighted several “peculiar” aspects of the case (for example, why did Pistorius pump 4, instead of 1, shots through the toilet door?), she found that the evidence produced to try and prove the “premeditated murder” of Reeva Steenkamp was almost exclusively circumstantial.
It would be difficult to convict somebody for murdering his girlfriend merely because the state produced evidence that they had fought on Whatsapp and (contradictory) evidence that neighbours heard them fighting on the night of the killing.
The high-water mark of the state’s case in this regard was the questions raised about how likely it would have been for Pistorius not to notice that Steenkamp was no longer in bed when he grabbed his gun and proceeded to the bathroom. But as the onus falls on the state to prove its case beyond reasonable doubt, it is not surprising that the judge found that there was not sufficiently evidence to convict Pistorius of murdering Steenkamp in a premeditated manner.
However, the judge also found that Pistorius could not be convicted of murder for killing who he had claimed he believed was an “intruder” locked in the toilet.
In South African law it is not a valid defence to claim that you did not have the intention to kill X because you had in fact intended to kill Y and had killed X by mistake. Thus if Pistorius had intended to kill an intruder (and not Reeva Steenkamp), he would still be guilty of murder as long as the state had proven beyond reasonable doubt that he had intended to kill the person behind the door whom he might (or might not) have thought to be an intruder.
It was not possible for Pistorius to rely on self-defence (which would have rendered his actions lawful) because objectively speaking there was no threat to his life and he could therefore not have acted in self-defence to protect himself.
Although there was some confusion, Pistorius seemed to have offered two different defences focusing on his intention to kill.
First, he argued that he acted in putative self-defence. In other words, he contended that although there was no threat to his life, he genuinely believed that there was such a threat and hence did not have the intention unlawfully to kill anyone.
This defence would have succeeded if the judge had found that Pistorius had genuinely believed that his life was in danger and that he was using reasonable means to avert an attack on himself or his property.
As intention is tested subjectively, the pivotal question would be what the actual state of mind of Pistorius was at the time when he killed the victim. Did he really believe that he was acted in self-defence and did he really believe that he was using reasonable means to avert the threat? I could not tell whether the court accepted this defence.
During cross-examination Pistorius offered a second defence of involuntary action. If the judge had found that Pistorius had not acted voluntary he would be entitled to an acquittal if his actions were attributable “to mechanical behaviour or muscular movements of which he was unaware and over which he had no control”. The judge rejected this argument.
Instead the judge found that Pistorius lacked not only the direct intention to kill Reeva Steenkamp, but also the indirect intention (dolus eventualis) to kill the person he believed was hiding behind the toilet door.
The state can only prove intention via the concept of dolus eventualis where the state can prove that while Pistorius might not have meant to kill the victim (Reeva Steenkamp or the putative intruder), he nevertheless foresaw the possibility and nevertheless proceeded with his actions (in legal terms he nevertheless reconciled himself to this possibility and went ahead).
In 2013 Judge Fritz Brand reminded us in the Humphreys case that it is not sufficient for the state to show that the accused should (objectively) have foreseen the possibility of fatal injuries to convict him or her of murder on the basis of dolus eventualis. The state must show that the accused actually foresaw the possibility of his actions killing someone (in this case, the person – whomever it might have been – behind the toilet door). It is not about what a reasonable person would have foreseen (which would speak to whether he is guilty of culpable homicide).
In this case the judge found that Oscar Pistorius did not actually (subjectively) foresee as a possibility that he would kill the person behind the toilet door when he pumped four bullets through the door.
For me the puzzling part of the judgment is the reasoning employed by Judge Masipa to come to this conclusion. Amongst others, she found that all the evidence suggest that he was truly distressed about having killed Reeva Steenkamp. How could he subjectively have foreseen that he would kill her if after the fact he was so distressed?
But although this might show that he did not subjectively foresee that he would kill Reeva Steenkamp, it says nothing about subjectively foreseeing that he would kill who he had thought was an intruder hiding behind the door. Given all the evidence presented in court about Pistorius’s knowledge of guns and what the bullets he used would do to a person, it is unlikely in the extreme that Pistorius did not foresee that the person behind the door (who he might have thought was an intruder) would be killed.
I might be wrong or might have misheard, but to my mind the judge did not engage with this issue in sufficient detail to explain convincingly why she found that Pistorius did not have the dolus eventualis to kill an unknown person behind the toilet door.
Given that Pistorius himself was unclear about what he felt and believed when he pumped four bullets through the door, and given the absolute improbability that any person (even somebody who is not at all reasonable in his or her actions) would not have foreseen the possibility of killing somebody in those circumstances, the lack of detailed analysis not linked to Pistorius’s intention to kill Reeva Steenkamp, raises questions about the finding.
It also raises questions about whether Judge Masipa might not wrongly have found that Pistorius could not have the requisite dolus eventualis because there was not sufficient evidence that he foresaw that his actions would lead to the killing of Reeva Steenkamp (as opposed to the killing of another person hiding behind the toilet door).
Of course, it is not easy for any judge to make a decision about what is in the mind of the accused. In order to convict Pistorius of murder the judge in this case had to look at all the facts and had to decide that she was convinced beyond reasonable doubt that – subjectively – Pistorius had foreseen that by pumping four “zombie stopper” bullets into a toilet door behind which a human being was standing could lead to the killing of that human being. In doing so the mere say so of Pistorius that he did not foresee this would not be the only evidence to consider. As the Court explained in Humpreys:
[S]ubjective foresight can be proved by inference. Moreover, common sense dictates that the process of inferential reasoning may start out from the premise that, in accordance with common human experience, the possibility of the consequences that ensued would have been obvious to any person of normal intelligence. The next logical step would then be to ask whether, in the light of all the facts and circumstances of this case, there is any reason to think that the appellant would not have shared this foresight, derived from common human experience, with other members of the general population.
In the Pistorius case the question is whether there was any reason to believe Pistorius did not share the foresight that his actions could lead to the killing of a human being. The judge found that there was. The question is whether the facts support such a finding.BACK TO TOP