Interestingly women and men report similar rates of spousal violence — in , 6 percent had experienced spousal violence in the previous five years — but women are more likely to experience more severe forms of violence including multiple victimizations and violence leading to physical injury Sinha, In order to empower women, feminists pressed lawmakers to develop zero-tolerance policies that would support aggressive policing and prosecution of offenders.
These policies oblige police to lay charges in cases of domestic violence when a complaint is made, whether or not the victim wished to proceed with charges Kramar, In , 84 percent of violent spousal incidents reported by women to police resulted in charges being laid. However, according to victimization surveys only 30 percent of actual incidents were reported to police. The majority of women who did not report incidents to the police stated that they dealt with them in another way, felt they were a private matter, or did not think the incidents were important enough to report.
A significant proportion, however, did not want anyone to find out 44 percent , did not want their spouse to be arrested 40 percent , or were too afraid of their spouse 19 percent Sinha, Social groups and authorities create deviance by first making the rules and then applying them to people who are thereby labelled as outsiders Becker, Deviance is not an intrinsic quality of individuals but is created through the social interactions of individuals and various authorities.
Deviance is something that, in essence, is learned. In the early s, sociologist Edwin Sutherland sought to understand how deviant behaviour developed among people. Since criminology was a young field, he drew on other aspects of sociology including social interactions and group learning Laub, His conclusions established differential association theory , stating that individuals learn deviant behaviour from those close to them who provide models of and opportunities for deviance.
According to Sutherland, deviance is less a personal choice and more a result of differential socialization processes. A tween whose friends are sexually active is more likely to view sexual activity as acceptable. Becker paid his way through graduate studies by performing as a jazz pianist and took the opportunity to study his fellow musicians. He conducted 50 interviews and noted that becoming a marijuana user involved a social process of initiation into a deviant role that could not be accounted for by either the physiological properties of marijuana or the psychological needs for escape, fantasy, etc.
Regular marijuana use was a social achievement that required the individual to pass through three distinct stages. Failure to do so meant that the individual would not assume the deviant role as a regular user of marijuana. Firstly, individuals had to learn to smoke marijuana in a way that would produce real effects. Many first-time users do not feel the effects.
If they are not shown how to inhale the smoke or how much to smoke, they might not feel the drug had any effect on them. Although people might display different symptoms of intoxication — feeling hungry, elated, rubbery, etc. Through listening to experienced users talk about their experiences, novices are able to locate the same type of sensations in their own experience and notice something qualitatively different going on.
Thirdly, they had to learn how to enjoy the sensations: They had to learn how to define the situation of getting high as pleasurable. Smoking marijuana is not necessarily pleasurable and often involves uncomfortable experiences like loss of control, impaired judgement, distorted perception, and paranoia. Unless the experiences can be redefined as pleasurable, the individual will not become a regular user. Often experienced users are able to coach novices through difficulties and encourage them by telling them they will learn to like it.
It is through differential association with a specific set of individuals that a person learns and assumes a deviant role. The role needs to be learned and its value recognized before it can become routine or normal for the individual. Although all of us violate norms from time to time, few people would consider themselves deviant.
Labelling theory examines the ascribing of a deviant behaviour to another person by members of society. Thus, what is considered deviant is determined not so much by the behaviours themselves or the people who commit them, but by the reactions of others to these behaviours. As a result, what is considered deviant changes over time and can vary significantly across cultures.
Glossary of Legal Terms
It is important to note that labelling theory does not address the initial motives or reasons for the rule-breaking behaviour, which might be unknowable, but the importance of its social consequences. It does not attempt to answer the questions of why people break the rules or why they are deviant so much as why particular acts or particular individuals are labelled deviant while others are not.
How do certain acts get labelled deviant and what are the consequences? Sociologist Edwin Lemert expanded on the concepts of labelling theory, identifying two types of deviance that affect identity formation. Speeding is a deviant act, but receiving a speeding ticket generally does not make others view you as a bad person, nor does it alter your own self-concept.
Individuals who engage in primary deviance still maintain a feeling of belonging in society and are likely to continue to conform to norms in the future. Sometimes, in more extreme cases, primary deviance can morph into secondary deviance. For example, consider a high school student who often cuts class and gets into fights. Secondary deviance can be so strong that it bestows a master status on an individual. A master status is a label that describes the chief characteristic of an individual.
Some people see themselves primarily as doctors, artists, or grandfathers. Others see themselves as beggars, convicts, or addicts. In the second case, being labelled a juvenile delinquent sets up a set of responses to the teenager by police and authorities that lead to criminal charges, more severe penalties, and a process of socialization into the criminal identity. In detention in particular, individuals learn how to assume the identity of serious offenders as they interact with hardened, long-term inmates within the prison culture Wheeler, Judges were also found to be more likely to impose harsher penalties on teenagers from divorced families.
Unsurprisingly, Cicourel noted that subsequent research conducted on the social characteristics of teenagers who were charged and processed as juvenile delinquents found that children from divorced families were more likely to be charged and processed. Divorced families were seen as a cause of youth crime. This set up a vicious circle in which the research confirmed the prejudices of police and judges who continued to label, arrest, and convict the children of divorced families disproportionately.
The labelling process acted as a self-fulfilling prophecy in which police found what they expected to see. The sociological study of crime, deviance, and social control is especially important with respect to public policy debates. The legislation imposes a mandatory six-month sentence for cultivating six marijuana plants, for example.
This followed the Tackling Violent Crime Act passed in , which among other provisions, imposed a mandatory three-year sentence for first-time gun-related offences. This government policy represented a shift toward a punitive approach to crime control and away from preventive strategies such as drug rehabilitation, prison diversion, and social reintegration programs.
Despite the evidence that rates of serious and violent crime have been falling in Canada, and while even some of the most conservative politicians in the United States have begun to reject the punitive approach as an expensive failure, the government pushed the legislation through Parliament. One reason is that violent crime is a form of deviance that lends itself to spectacular media coverage that distorts its actual threat to the public. However, the image of crime presented in the headlines does not accurately represent the types of crime that actually occur.
Whereas the news typically reports on the worst sorts of violent crime, violent crime made up only 21 percent of all police-reported crime in down 17 percent from , and homicides made up only one-tenth of 1 percent of all violent crimes in down 16 percent from In , the homicide rate fell to its lowest level since Perreault, This distortion creates the conditions for moral panics around crime. As we noted earlier, a moral panic occurs when a relatively minor or atypical situation of deviance arises that is amplified and distorted by the media, police, or members of the public.
It thereby comes to be defined as a general threat to the civility or moral fibre of society Cohen, For example, the implementation of mandatory minimum sentences for the cultivation of marijuana is framed in the Safe Streets and Communities legislation as a response to the infiltration of organized crime into Canada. For years newspapers have uncritically published police messaging on grow-ops and the marijuana trade that characterizes the activities as widespread, gang-related, and linked to the cross-border trade in guns and more serious drugs like heroin and cocaine.
Television news coverage often shows police in white, disposable hazardous-waste outfits removing marijuana plants from suburban houses, and presents exaggerated estimates of the street value of the drugs. However a Justice Department study in revealed that out of a random sample of grow-ops, only 5 percent had connections to organized crime.
While 76 percent of Canadians believe that marijuana should be legally available Stockwell et al. Although deviance is a violation of social norms, it is not always punishable, and it is not necessarily bad. Crime, on the other hand, is a behaviour that violates official law and is punishable through formal sanctions. Walking to class backwards is a deviant behaviour. For example, in Viola Desmond refused to sit in the balcony designated for blacks at a cinema in New Glasgow, Nova Scotia, where she was unable to see the screen.
She was dragged from the cinema by two men who injured her knee, and she was then arrested, obliged to stay overnight in the male cell block, tried without counsel, and fined. The courts ignored the issue of racial segregation in Canada. Instead her crime was determined to be tax evasion because she had not paid the 1 cent difference in tax between a balcony ticket and a main floor ticket. She took her case to the Supreme Court of Nova Scotia where she lost. In hindsight, and long after her death, she was posthumously pardoned, because the application of the law was clearly in violation of norms of social equality.
As you learned previously, all societies have informal and formal ways of maintaining social control. Within these systems of norms, societies have legal codes that maintain formal social control through laws, which are rules adopted and enforced by a political authority. Those who violate these rules incur negative formal sanctions. Normally, punishments are relative to the degree of the crime and the importance to society of the value underlying the law.
As we will see, however, there are other factors that influence criminal sentencing. Not all crimes are given equal weight. Society generally socializes its members to view certain crimes as more severe than others. For example, most people would consider murdering someone to be far worse than stealing a wallet and would expect a murderer to be punished more severely than a thief. In modern North American society, crimes are classified as one of two types based on their severity.
Rape, murder, and armed robbery fall under this category. Nonviolent crimes involve the destruction or theft of property, but do not use force or the threat of force. If you use a crowbar to break into a car, you are committing a nonviolent crime; if you mug someone with the crowbar, you are committing a violent crime. As we noted earlier in the section on critical sociological approaches, when we think of crime, we often picture street crime , or offences committed by ordinary people against other people or organizations, usually in public spaces.
Embezzlement, insider trading, and identity theft are all types of corporate crime. Although these types of offences rarely receive the same amount of media coverage as street crimes, they can be far more damaging. An often-debated third type of crime is victimless crime. These are called victimless because the perpetrator is not explicitly harming another person. As opposed to battery or theft, which clearly have a victim, a crime like drinking a beer at age 17 or selling a sexual act do not result in injury to anyone other than the individual who engages in them, although they are illegal.
While some claim acts like these are victimless, others argue that they actually do harm society. Prostitution may foster abuse toward women by clients or pimps. Drug use may increase the likelihood of employee absences. Such debates highlight how the deviant and criminal nature of actions develops through ongoing public discussion. In the early morning of January 4, , a year-old Sikh caretaker in Surrey, B. The skinheads were part of a group that called itself White Power. They had been to an all-night drinking party when they decided they were going to vandalize some cars in the temple parking lot.
They encountered the caretaker Nirmal Singh Gill and took turns attacking him. In trial it came out that the eldest of the skinheads had recently been released from the military because of his racist beliefs. Another had a large Nazi flag pinned to the wall of his apartment. The category of hate crimes grew out of the provisions in the Criminal Code that prohibit hate propaganda sections and including advocating genocide, public incitement of hatred, or the willful promotion of hatred against an identifiable group.
In , section However, police reported hate crimes totalled only 1, incidents in About one-third of the General Social Survey respondents said they reported the hate-motivated incidents to the police. In police-reported hate crimes had dropped to 1, incidents. The majority of these were racially or ethnically motivated, but many were based on religious prejudice especially anti-Semitic or sexual orientation. A significant portion of the hate-motivated crimes 50 percent involved mischief vandalism, graffiti, and other destruction of property.
This figure increased to 75 percent for religious-motivated hate crimes. Violent hate crimes constituted 39 percent of all hate crimes 22 percent accounted for by violent assault specifically. Crime Statistics What crimes are people in Canada most likely to commit, and who is most likely to commit them? To understand criminal statistics, you must first understand how these statistics are collected. These annual publications contain data from all the police agencies in Canada.
The accuracy of the data collected by the UCR also varies greatly. Because police and other authorities decide which criminal acts they are going to focus on, the data reflects the priorities of the police rather than actual levels of crime per se. For example, if police decide to focus on gun-related crimes, chances are that more gun-related crimes will be discovered and counted. Similarly, changes in legislation that introduce new crimes or change the categories under which crimes are recorded will also alter the statistics. A self-report study is a collection of data acquired using voluntary response methods, based on telephone interviews.
In , for example, survey data were gathered from 79, households across Canada on the frequency and type of crime they experience in their daily lives. The surveys are thorough, providing a wider scope of information than was previously available. This allows researchers to examine crime from more detailed perspectives and to analyze the data based on factors such as the relationship between victims and offenders, the consequences of the crimes, and substance abuse involved in the crimes.
Demographics are also analyzed, such as age, ethnicity, gender, location, and income level. Though the GSS is a critical source of statistical information, disadvantages exist. Inability to contact important demographics, such as those who do not have access to phones or who frequently relocate, also skews the data.
For those who participate, memory issues can be problematic for the data sets. While neither of these publications can take into account all of the crimes committed in the country, some general trends may be noted. Crime rates were on the rise after , but following an all-time high in the s and s, rates of violent and nonviolent crimes started to decline. In they reached their lowest level since Perreault, In , approximately 2 million crimes occurred in Canada.
The rate of violent crime reached its lowest level since , led by decreases in sexual assault, common assault, and robbery. The homicide rate fell to its lowest level since An estimated 1. The major contribution to the declining crime rate has been decreases in nonviolent crime, especially decreases in mischief, break-ins, disturbing the peace, theft of a motor vehicle, and possession of stolen property.
As noted above, however, only 31 percent of violent and nonviolent crimes were reported to the police. What accounts for the decreases in the crime rate? Opinion polls continue to show that a majority of Canadians believe that crime rates, especially violent crime rates, are rising Edmiston, , even though the statistics show a steady decline since Where is the disconnect?
There are three primary reasons for the decline in the crime rate. Firstly, it reflects the demographic changes to the Canadian population. Most crime is committed by people aged 15 to This age cohort has declined in size since Secondly, male unemployment is highly correlated with the crime rate. Following the recession of —, better economic conditions improved male unemployment. Thirdly, police methods have arguably improved since , including having a more targeted approach to particular sites and types of crime. Whereas reporting on spectacular crime has not diminished, the underlying social and policing conditions have.
It is very difficult to get a feel for statistical realities when you are sitting in front of a TV screen that shows a daily litany of violent and frightening crime. At the end of , approximately 38, adults were in prison in Canada, while another , were under community supervision or probation Dauvergne, By way of contrast, seven million Americans were behind bars in Bureau of Justice Statistics, In the United States in , the incarceration rate was approximately 1, per , population.
More than 1 in U. While Aboriginal people accounted for about 4 percent of the Canadian population, in , they made up Aboriginal women made up Gladue that the social history of Aboriginal offenders should be considered in sentencing. Section Nevertheless, between and , the Aboriginal population in prison grew by 44 percent Correctional Investigator Canada, Hartnagel summarised the literature on why Aboriginal people are overrepresented in the criminal justice system Firstly, Aboriginal people are disproportionately poor and poverty is associated with higher arrest and incarceration rates.
Unemployment in particular is correlated with higher crime rates. Thirdly, the criminal justice system disproportionately profiles and discriminates against Aboriginal people. It is more likely for Aboriginal people to be apprehended, processed, prosecuted, and sentenced than non-Aboriginal people. Fourthly, the legacy of colonization has disrupted and weakened traditional sources of social control in Aboriginal communities. The informal social controls that effectively control criminal and deviant behaviour in intact communities have been compromised in Aboriginal communities due to the effects of forced assimilation, the residential school system, and migration to poor inner city neighbourhoods.
Although black Canadians are a smaller minority of the Canadian population than Aboriginal people, they experience a similar problem of overrepresentation in the prison system. Blacks represent approximately 2. A survey revealed that blacks in Toronto are subject to racial profiling by the police, which might partially explain their higher incarceration rate Wortley, Racial profiling occurs when police single out a particular racial group for extra policing, including a disproportionate use of stop-and-search practices i.
Moreover, in a reverse of the situation for whites, older and more affluent black males were more likely to be stopped and searched than younger, lower-income blacks. It seems intuitive that harsher penalties will deter offenders from committing more crimes after their release from prison. However research shows that serving prison time does not reduce the propensity to re-offend after the sentence has been completed. Some researchers have spoken about a penal-welfare complex to describe the creation of inter-generational criminalized populations who are excluded from participating in society or holding regular jobs on a semi-permanent basis Garland, The painful irony for these groups is that the petty crimes like theft, public consumption of alcohol, drug use, etc.
There are a number of alternatives to prison sentences used as criminal sanctions in Canada including fines, electronic monitoring, probation, and community service. These alternatives divert offenders from forms of penal social control, largely on the basis of principles drawn from labelling theory. Many non-custodial sentences involve community-based sentencing , in which offenders serve a conditional sentence in the community, usually by performing some sort of community service. The argument for these types of programs is that rehabilitation is more effective if the offender is in the community rather than prison.
In special cases where the parties agree, Aboriginal sentencing circles involve victims, the Aboriginal community, and Aboriginal elders in a process of deliberation with Aboriginal offenders to determine the best way to find healing for the harm done to victims and communities. The emphasis is on forms of traditional Aboriginal justice , which centre on healing and building community rather than retribution. It is difficult to find data in Canada on the effectiveness of these types of programs.
How should we talk about mental health? |
However, a large meta-analysis study that examined ten studies from Europe, North America, and Australia was able to determine that restorative justice conferencing was effective in reducing rates of recidivism and in reducing costs to the criminal justice system Strang et al. The authors suggest that recidivism was reduced between 7 and 45 percent from traditional penal sentences by using restorative justice conferencing.
Rehabilitation and recidivism are of course not the only goals of the corrections systems. Many people are skeptical about the capacity of offenders to be rehabilitated and see criminal sanctions more importantly as a means of a deterrence to prevent crimes, b retribution or revenge to address harms to victims and communities, or c incapacitation to remove dangerous individuals from society. The political controversies that surround the question of how best to respond to crime are difficult to resolve at the level of political rhetoric.
Tough and soft are moral categories that reflect a moral characterization of the issue. A question framed by these types of moral categories cannot be resolved by using evidence-based procedures. The story of the isolated individual whose specific crime becomes the basis for the belief that the criminal justice system as a whole has failed illustrates several qualities of unscientific thinking: knowledge based on casual observation, knowledge based on overgeneralization, and knowledge based on selective evidence.
Moral categories of judgement pose the problem in terms that are unfalsifiable and non-scientific. The sociological approach is essentially different. It focuses on the effectiveness of different social control strategies for addressing different types of criminal behaviour and the different types of risk to public safety. Thus, from a sociological point of view, it is crucial to think systematically about who commits crimes and why.
Also, it is crucial to look at the big picture to see why certain acts are considered normal and others deviant, or why certain acts are criminal and others are not. In a society characterized by large inequalities of power and wealth, as well as large inequalities in arrest and incarceration, an important social justice question needs to be examined regarding who gets to define whom as criminal.
In this regard, sociology is able to advocate policy options that are neither hard nor soft, but evidence-based and systematic. Aboriginal sentencing circles : The involvement of Aboriginal communities in the sentencing of Aboriginal offenders. Deviance and Control Deviance is a violation of norms. Society seeks to limit deviance through the use of sanctions that help maintain a system of social control.
In modern normalizing societies, disciplinary social control is a primary governmental strategy of social control. Theoretical Perspectives on Deviance The three major sociological paradigms offer different explanations for the motivation behind deviance and crime. Functionalists point out that deviance is a social necessity since it reinforces norms by reminding people of the consequences of violating them.
Critical sociologists argue that crime stems from a system of inequality that keeps those with power at the top and those without power at the bottom. Feminist sociologists emphasize that gender inequalities play an important role in determining what types of acts are actually regarded as criminal.
Symbolic interactionists focus attention on the socially constructed nature of the labels related to deviance. Crime and deviance are learned from the environment and enforced or discouraged by those around us. Crime and the Law Crime is established by legal codes and upheld by the criminal justice system. The corrections system is the dominant system of criminal punishment but a number of community-based sentencing models offer alternatives that promise more effective outcomes in terms of recidivism.
Although crime rates increased throughout most of the 20th century, they have been dropping since their peak in Deviance and Control 1. Which of the following best describes how deviance is defined? In , Viola Desmond was arrested for refusing to sit in the blacks-only section of the cinema in Nova Scotia. A student has a habit of texting during class. One day, the professor stops his lecture and asks her to respect the other students in the class by turning off her phone.
School discipline obliges students to sit in rows and listen to lessons quietly in order for them to learn. Theoretical Perspectives on Deviance 6. A student wakes up late and realizes her sociology exam starts in five minutes. She jumps into her car and speeds down the road, where she is pulled over by a police officer. The student explains that she is running late, and the officer lets her off with a warning. According to critical sociology, which of the following people is most likely to commit a crime of accommodation?
According to the concept of the power elite, why would a celebrity such as Charlie Sheen commit a crime? A convicted sexual offender is released on parole and arrested two weeks later for repeated sexual crimes. How would labelling theory explain this? Crime and the Law Which of the following is an example of corporate crime? Deviance and Control Although we rarely think of it in this way, deviance can have a positive effect on society. Theoretical Perspectives on Deviance The Vancouver safe injection site is a controversial strategy to address the public health concerns associated with intravenous drug use.
Read about the perspectives that promote and critique the safe injection site model at the following websites. Can you determine how the positions expressed by the different sides of the issue fit within the different sociological perspectives on deviance? What is the best way to deal with the problems of addiction? Crime and the Law How is crime data collected in Canada? New York, NY: Current. Hare, R. Without conscience: The disturbing world of the psychopaths among us. Rimke, H. The pathological approach to crime. In Kirstin Kramar Ed.
Toronto, ON: Pearson. Deviance and Control Becker, H. Outsiders: Studies in the sociology of deviance. Feely, M. The new penology: Notes on the emerging strategy of corrections and its implications. Criminology, 30 4 , Foucault, M. Discipline and punish: The birth of the prison. Garland, D. The limits of the sovereign state: Strategies of crime control in contemporary society. Innes, M. Understanding social control: Deviance, crime and social order. Murphy, E. The black candle. Toronto, ON: Coles Publishing. Brookfield, VT: Ashgate. Schoepflin, T.
Deviant while driving? Everyday Sociology Blog. Theoretical Perspectives on Deviance Becker, H. Becoming a marijuana user. Becker, H. Boyce, J.
The division of labor in society. Hirschi, T. Causes of delinquency. Howlett, D. Canadians for tax fairness [PDF]. Johnson, H. Dangerous domains: Violence against women in Canada. Toronto, ON: Nelson. Kong, R. Sexual offences in Canada. Statistics Canada catologue no. Ottawa, ON: Statistics Canada. Laub, J. Edwin H. Sutherland and the Michael-Adler report: Searching for the soul of criminology seventy years later. McFarland, J. Three former Nortel executives found not guilty of fraud. McLaren, A. The bedroom and the state: The changing practices and politics of contraception and abortion in Canada , Toronto, ON: Oxford.
McKenna, B. White-collar crime hits more than a third of Canadian organizations. Pyke, A. Are regulators throwing in the towel on financial crisis investigations? Quinney, R. Class, state and crime: On the theory and practice of criminal justice. New York, NY: Longman.
Rusnell, C. Enbridge staff ignored warnings in Kalamazoo River spill. CBC News. Samuelson, L. The Canadian criminal justice system: Inequalities of class, race and gender. Singh Bolaria Ed. Sharpe, A. Sinha, M. Measuring violence against women: Statistical trends. Snider, L. The regulatory dance: Understanding reform processes in corporate crime. Hinch Ed. Scarborough, ON: Prentice Hall. Tencer, D. Offshore tax haven prosecution pitifully low as sheltered money spikes: Reports.
Huffington Post. Wheeler, S. Socialization in correctional communities. American Sociological Review, 26, Zhang, T. Costs of crime in Canada, Aboriginal justice strategy annual activities report Allen, M. Police-reported hate crime in Canada, Boyd, S. Killer weed: Marijuana grow ops, media, and justice. Bureau of Justice Statistics. Correctional Investigator Canada. Dauvergne, M. Statistics Canada catologue No. Department of Justice Canada.
Community-based sentencing: The perspectives of crime victims. Edmiston, J. In S v Mogohlwane ,  Mogohlwane had been robbed by the deceased, who had been armed with a tomahawk, of a bag containing his clothing, shoes and food. Mogohlwane then went to his home, nearby, fetched a knife and returned to recover his property. When Mogohlwane tried to take back his bag, the deceased resisted and again threatened him with the tomahawk.
Mogohlwane then stabbed him with the knife, causing his death. Mogohlwane was charged with murder. The court held that, in determining whether or not the property is of trivial value, it could be taken into account that the accused as was the case in casu might not be richly endowed with earthly possessions. What may be of little value to a wealthy person may be of great value to a poor person. Mogohlwane was justified in his conduct, because his attempt to recover his property was close enough in time to the robbery to be part of the same chain of events.
The State had not proved that there was a less dangerous and more effective means or method reasonably available to the accused to defend himself against the act of robbery, so it was decided that Mogohlwane had acted in private defence and therefore lawfully. A person acts out of necessity, and his act is therefore lawful, if he acts in protection of his own or of somebody else's life, bodily integrity, property or some other legally recognised interest, endangered by a threat of harm which has commenced or is imminent, and which cannot be averted in any other way—provided that the person is not legally compelled to endure the danger, and provided that the interest protected is not out of proportion to the interest necessarily infringed by the protective act.
It is immaterial whether the threat of harm takes the form of compulsion or emanates from a non-human agency such as force of circumstance. Private defence and necessity are closely related: Both allow a person to protect interests of value to him, such as life, bodily integrity and property, against threatening danger. There are also differences between them:. An example of compulsion is where Craig orders Richman to commit a punishable act, such as setting ablaze Helena's motor car, and threatens to kill Richman if he fails to comply.
Richman duly complies. The emergency here is the result of unlawful human conduct; the act of arson is directed at an innocent third person, namely Helena. In the case of inevitable evil, the emergency situation is the result of non-human intervention, such as an act of nature a flood, for example or some other chance circumstance like a shipwreck.
If a fire breaks out in Y's house, and X, in order to escape, has to break through a window, he may reply to a charge of malicious damage to property with a defence of necessity. If X's baby gets hold of a bottle of pills and swallows all of them, and X in rushing her to hospital exceeds the speed limit, he may also rely on necessity.
In S v Bailey ,  the Appellate Division found that a person is guilty of a crime in respect of which intention is a requirement where it is proved that. The mere danger of losing one's job does not give one the right to act out of necessity, held the court in S v Canestra. In S v Mtewtwa ,  the court held that, for the defence of necessity to be applicable, the threat or danger sought to be averted must still be in existence; it must not yet be over. If it were over, there would be nothing to avert. A person may not use his own prior negligence or misconduct to justify his later actions and escape liability.
According to this rule, an accused would not be able to rely on the defence of necessity where he cause the threat or danger himself, through his own culpable conduct. In S v Bradbury ,  a member of a gang reluctantly played a lesser role in a murder due to fear of reprisals if he refused. The Appellate Division found that there was a need for a deterrent to this kind of gangsterism.
The decision of the trial judge to impose the death sentence was therefore not so unreasonable as to warrant the appeal court's intervention. In both Bradbury and Lungile, the accused was aware that he was creating a risk of danger through his prior conduct. The course of action taken by the accused must have been necessary in order to avert the threatened harm or danger. This does not mean that there must literally have been no alternative, but merely that there was no other practical way of averting the threatened harm or danger.
The test here is objective: whether or not, in light of all the circumstances, a reasonable person could be expected to resist the threat. This means. In S v Malan ,  the accused a farmer had for many years suffered problems with stray animals causing damage to his land. Having exhausted all remedies, from impounding the animals to sending messages to their owner, to no avail, the accused shot and killed the animals when they yet again strayed on to his land.
The court found that such conduct was not unreasonable in the circumstances; therefore, it was lawful. The means used and measures taken to avert the danger of harm must not have been excessive, having regard to all the circumstances of the case. In S v Pretorius ,  in which Pretorius broke the speed limit in rushing to hospital a seriously ill person, the court held that the onus of proof in a defence of necessity rests on the State, which must rule out the reasonable possibility of an act of necessity. It is not for the accused to satisfy the court that he acted from necessity.
In S v Mtewtwa , as we have seen, the court held that, where an accused's defence is one of compulsion, the onus lies on the State to show that a reasonable man would have resisted the compulsion. There is no onus on the accused to satisfy the court that he acted under compulsion. The old authorities took the view that a person was never justified in killing an innocent person to save his own life. It was thought that a person should rather submit to death, although the threat to his own life might be regarded as a mitigating factor.
It concerned survival cannibalism following a shipwreck and its purported justification on the basis of a custom of the sea. Dudley and Stephens were involved in a shipwreck and cast adrift in an open boat with two other persons: a man named Brooks and a cabin boy, seventeen years old, called Parker.
After seventeen days at sea, eight of them without food and six without water, it became clear that they were unlikely to survive much longer. Dudley and Stephens agreed that Dudley should kill Parker, so that they could eat him, reasoning that he, being younger and weaker, would be the first to die anyway. Brooks did not agree to the plan. Dudley went ahead and killed Parker. All three of them ate his remains for the next four days. They were rescued on the fifth. Dudley and Stephens, on a charge of murder, raised the defence of necessity. The court rejected this defence and convicted them, holding that the law expects the average man to sacrifice his own life for that of an innocent victim.
In Werner, a murder had been committed by prisoners of war acting on the orders of a superior officer. The court held that the killing of an innocent person by compulsion is never legally justifiable. As for Bradbury, a member of a dangerous gang, he had reluctantly played a minor role in a planned murder, being influenced thereto by fear of reprisals of a serious nature on himself or his family should he refuse.
The trial judge had imposed the death sentence on him. In an appeal against this sentence, the Appellate Division held that, weighing the influence of fear against the need for a deterrent to this kind of gangsterism, there was nothing so unreasonable in the trial judge's decision as to justify a finding that his discretion had not been judicially exercised.
Goliath and another person the first accused in the trial came upon the deceased, and the first accused began to rob him. The first accused produced a knife and told Goliath to tie up the deceased. Goliath objected. The first accused said he would stab Goliath if he did not obey. Goliath then tied up the deceased. The first accused then stabbed the deceased to death. Goliath complied. They were both charged with murder, Goliath as an accomplice. The trial court convicted the first accused, but acquitted Goliath on the basis that he had acted under compulsion.
The State, however, reserved certain questions of law for decision by the Appellate Division. The most pertinent of these was whether or not the defence of compulsion could ever constitute a defence to murder. In reply, the Appellate Division confirmed that Goliath had been rightly acquitted, that is, it accepted that necessity, in the form of compulsion, can be a complete defence to the killing of an innocent third person.
It is not a defence that will be accepted lightly, however; it will depend on all the surrounding circumstances. The whole factual complex must be carefully examined and adjudicated upon with the greatest care. It also weighed heavily with the court that Goliath was neither the instigator nor the main perpetrator, merely a reluctant accomplice; nor did he profit in any way from the crime. The defence of necessity on a murder charge was upheld in S v Peterson ,  since the State had not proved that a fictional reasonable person in the position of the accused would have offered resistance to the compulsion, including a threat against his life, which had been exerted by a co-accused.
The maxim lex non cogit ad impossibilia may be translated to mean that the law does not compel anyone to do the impossible. Impossibility is the appropriate defence excluding unlawfulness in cases where the law places a person under a legal duty to perform a positive act, and the person is unable to comply with this duty. The policy rationale for this ground of justification is that it would be unfair to punish an individual who contravened the law under conditions where he could not act otherwise.
There must be a positive obligation imposed by law, which with it must be absolutely physically impossible to comply, not merely difficult or inconvenient. In R v Jetha ,  the appellant had sailed for India on 11 October ; his estate was provisionally sequestrated on 13 October In March , after his return, he was convicted of contravening section a of the Insolvency Act,  in that he had failed to attend the first meeting of his creditors on 11 November The court, on appeal, held that, as the appellant had not and could not have known of the date of the meeting until after it was held, and as it would have been physically impossible for him to attend even if he had known the date, there was no ground for the conviction.
The impossibility must not be the fault of the accused. In R v Korsten ,  an accused person took his cattle to be dipped in a township dip, but was prevented from dipping them by the township foreman, because he had not complied with a by-law which provided that no person should use the dipping tank except upon production of coupons, previously purchased, entitling him to do so.
The accused's excuse for not having purchased such coupons was that he did not know that this was necessary. The court held that, inasmuch as the Animal Diseases Act  imposed an absolute duty on the accused to dip his cattle, these facts afforded no defence. The question here is whether or not an otherwise unlawful act may be justified by the fact that the accused was merely obeying the orders of a superior.
The Romans phrased it thus: "He is free from blame who is bound to obey. These requirements are set out in S v Banda ,  where the court held that the defence of obedience to superior orders was a form of the defence of compulsion, in that the subordinate was compelled to follow the orders of his superior officer. It is considered unjust, therefore, to hold a soldier criminally liable for merely following orders. The rationale for the defence is that military discipline requires immediate and unquestioning obedience to orders, backed up by stern punishment for disobedience.
In Queen v Albert ,  the court held that a child under fourteen years of age, who assists his father in committing a crime, is presumed to do so in obedience to his father's orders, and is not punishable, even if he knew that he was performing a forbidden act—unless, in the case of a child above seven years of age, the crime is "atrocious,"  or so "heinous as obviously to absolve the person ordered to commit it from the duty of obedience. In S v Banda a treason trial held after the abortive military coup in Bophuthatswana , Friedman J drew a distinction between an unlawful and a manifestly unlawful order.
Where orders are so manifestly and palpably unlawful that a reasonable man in the circumstances of the accused a soldier in casu would know them to be so, the duty to obey is absent, and the accused will be liable for acts committed pursuant to such orders. If, however, a soldier is ordered to massacre civilians, or to rape and loot, he would not be able to rely on this defence, since conduct of this nature would be manifestly and palpably illegal. In S v Mostert ,  which dealt with the applicability of the defence to orders by traffic officers, the court held that the order must have emanated from someone lawfully placed in authority over the accused, and that the accused must have been under a duty to obey the given order; finally, the accused must have done no more harm than was necessary to carry out the order.
If the accused exceeds the limits of an order, he may not claim that he was acting under the orders of a superior. When officers of the courts, or of the law or the State generally, and in certain circumstances even private persons, as duly authorised instruments of the State, commit crimes in the proper exercise of such authority including acts of aggression upon life, person and property , they may be immune from punishment. This defence is to be found in the Diplomatic Immunities and Privileges Act ,  which sets out the immunities and privileges of diplomatic missions and consular posts, and of the members of such missions and posts.
Section 3 states that the Vienna Convention on Diplomatic Relations of is applicable to diplomatic missions and to the members of such missions; the Vienna Convention on Consular Relations of is applicable to consular posts and the members of such posts. Section 4 provides that heads of state, special envoys or representatives from another state, or another government or organisation, are immune from the criminal and civil jurisdiction of the courts.
They enjoy the privileges accorded them by customary international law , which extends their immunity also to their families, and to members of their staff and their families. The Minister must keep a register of all persons who are protected by such immunity. Consuls, be they career or honorary, are not diplomatic agents.
Nonetheless, they are, according to international law, entitled to immunity from civil and criminal proceedings in respect of official acts. The person officially authorised to execute either the civil or the criminal judgment of a court commits no crime in so doing. This exemption does not extend to cases in which the court has no jurisdiction.
For a crime in which negligence is sufficient for liability, and if the official's belief was not only genuinely held, but also reasonable,   he will not be liable. The fact that a person works as a court official may indicate that he ought to know the law relating to his sphere of activity,  and is therefore negligent. The test of intention is subjective, so the reasonableness or otherwise of the accused's belief is in principle irrelevant.
If, however, that belief is patently unreasonable, especially because the accused's occupation requires him to know better, this could constitute a factor from which the court may reach the conclusion that an inference of knowledge of unlawfulness can be drawn. The powers of public officers and private citizens to arrest, either with or without a warrant, are set out in the Criminal Procedure Act CPA. No common-law balance was required; there was no need to consider alternative means. Lethal force was permitted in respect of Schedule 1 offences. The old section 49 has been amended by section 7 of the Judicial Matters Second Amendment Act ,  which came into force in An important case necessitated the change.
When applying the reasonableness standard, the nature and degree of force used must be proportionate to the threat posed by the accused to the safety and security of police officers and others. This saved section 49 1 from invalidation. Section 49 2 , however, authorised police officers in the performance of their duties to use force where it might not be necessary or reasonably proportionate.
This, the court found, was socially undesirable and constitutionally impermissible. The court declared section 49 2 to be inconsistent with the Constitution and therefore invalid, since it infringed the rights to dignity, life and security of person. If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing.
This is a statutory articulation of the reasonable or proportional test. The subsection goes on to say that "the arrestor is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if he believes, on reasonable grounds,. Consent is only a ground of justification in respect of some crimes. It is not a ground of justification in respect of.
In R v Peverett ,  the accused and one "S," at the latter's suggestion, decided to commit suicide by introducing into a closed motor car poisonous fumes from the exhaust pipe of the car. The accused made the necessary arrangements. He and "S" then sat in the car; the accused started the engine. They both lost consciousness but were later removed from the car and eventually recovered. The accused was convicted of attempted murder; his appeal was dismissed.
The court held that the fact that "S" was free to breathe the poisonous gas or not, as she pleased, did not free the accused from criminal responsibility for his acts. The accused had contemplated and expected that, as a consequence of his acts, "S" would die; he therefore intended to kill her, however little he may have desired her death. In determining legal liability for terminating a patient's life, in Clarke v Hurst ,  the court held that there is no justification for drawing a distinction between. Just as, in the case of an omission to institute life-sustaining procedures, legal liability would depend on whether there was a duty to institute them, so in the case of their discontinuance liability would depend on whether or not there was a duty not to discontinue such procedures once they have been instituted.
A duty not to discontinue life-sustaining procedures cannot arise if the procedures instituted have proved to be unsuccessful. If the resuscitative measures were successful in restoring only these biological functions, they were in reality unsuccessful. Artificial measures, such as naso-gastric feeding, could consequently also be discontinued.
It is appropriate in cases of this nature, and not in conflict with public policy, to make an evaluation of the quality of life remaining to the patient and to decide on that basis whether life-sustaining measures ought to be taken or continued. A participant in sport may validly consent only to those injuries which are normally to be expected in that particular sport. Voluntary participation in sport may also imply that the participant consents to injuries sustained as a result of acts which contravene the rules of the game—but only if such incidents are normally to be expected in that particular game.
Injuries inflicted in the course of initiation or religious ceremonies may be justified by consent only if they are of a relatively minor nature and do not conflict with generally accepted concepts of morality. Sexual assault may be committed with or without the use of force or the infliction of injuries. Consent may operate as a justification for the act if no injuries are inflicted.
Where injuries are inflicted, it has been held that consent may not be pleaded as a defence. Snyman has averred, however, that in such cases it would "seem to be more realistic" to enquire into whether the act is contra bonos mores or not. If the injury is slight, it is conceivable that the law may recognise consent to the act as a defence.
Where consent is obtained by means of fraud or deception, it is not genuine consent. Fraud or deception may take the form. However, not all forms of fraud or deception will necessarily vitiate consent. Essentially, fraud or deception will only vitiate consent if it is material in nature: in other words, if the complainant would not have consented at all if he had known the truth, or would only have consented on substantially different terms.
In the case of sexual acts, it has long been the accepted rule that consent will only be vitiated by a fraud or deception that induces either error in negotio or error in personae:. To consent to an otherwise unlawful act, the person consenting must have the ability to understand the nature of the act and to appreciate its consequences. This ability may be lacking due to. In Du Preez v Conradie ,  the court held that a parent has the right and the power to chastise minor children. This includes the right to impose moderate and reasonable corporal punishment.
A step-parent to whom a divorced parent of the children is married may exercise the same rights if requested to do so by the other parent, subject to the same limitations as on that parent. The parent and step-parent are not entitled to molest their children or to exceed the bounds of moderate and reasonable chastisement. Section 35 1 of the Interim Constitution provides expressly that the rights entrenched in it, including section 10—"every person shall have the right to respect for and protection of his or her dignity"—and section 11 2 —no "person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment"—shall be interpreted in accordance with the values which underlie an open and democratic society based on freedom and equality.
In determining, then, whether punishment is cruel, inhuman or degrading within the meaning of the Constitution, the punishment in question must be assessed in the light of the values which underlie the Constitution. The simple message to be taken from this, according to the Constitutional Court, in S v Williams ,  is that the State, in imposing punishment, must do so in accordance with certain standards; these will reflect the values which underpin the Constitution. In the present context, this means that punishment must respect human dignity and be consistent with the provisions of the Constitution.
The caning of juveniles in casu was accordingly ruled unconstitutional. The Abolition of Corporal Punishment Act  abolished judicial corporal punishment. The South African Schools Act  abolished corporal punishment in schools.
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In Christian Education v Minister of Education ,  a private Christian organisation administered a private school and believed that, in terms of its Christian principles, the physical chastisement of children at school was lawful. The organisation applied for an order exempting the school from section 10 of the Schools Act, arguing that the constitutional right to religious freedom allowed it to be so exempted. The Constitutional Court held that the requested order could not be granted.
Even if one assumed that section 10 infringed upon parents' right to religious freedom, such infringement was justified, since even private schools exercise their functions for the benefit of the public interest. Relevant considerations in adjudicating on the chastisement of children were laid out in Du Preez v Conradie : . In R v K ,  a charge of murder was brought against a child of thirteen. The presumption, which applies for adults, that he had intended the probable consequences of his actions was not here applicable. The State failed to prove that the child knew that his act stabbing and thereby killing his mentally ill mother was unlawful.
In Director of Public Prosecutions, KZN v P ,  the respondent, a fourteen-year-old girl, had been convicted of the murder of her grandmother. The passing of sentence was postponed for a period of 36 months, on the condition that the respondent complied with the conditions of a sentence of 36 months' correctional supervision in terms of section 1 h of the Criminal Procedure Act.
It contended that, despite the young age of the respondent, direct imprisonment should have been imposed. The test for interference by an appeal court is whether the sentence imposed by the trial court is vitiated by irregularity or misdirection or is disturbingly inappropriate. The strongest mitigating factor in favour of the respondent in casu was her youthfulness: She had been twelve years and five months old at the time of the offence. A second factor was that she had no previous conviction.
The aggravating factors, however, were overwhelming. The postponement of the passing of sentence was therefore inappropriate in the circumstances, and caused a sense of shock and a feeling that justice was not done. Among the purposes of the Act is. The common law pertaining to the criminal capacity of children under the age of fourteen years was thereby amended. In terms of section 11, dealing with proof of criminal capacity, the State must prove, beyond reasonable doubt, that a child who is ten years or older, but under the age of fourteen years, had the capacity.
In order to determine whether or not the minimum age of criminal capacity as set out in section 7 1 should be raised, the Cabinet member responsible for the administration of justice must, not later than five years after the commencement of this section, submit a report to Parliament. The criterion in Stellmacher identifies as mental illnesses as opposed to mental defects only those disorders which are. To be endogenous is to be of internal origin. Section 78 1 of the CPA provides that a person whose act or omission constitutes an offence, and who suffers at the time from a mental illness or defect which makes him incapable.
The difference between the first contingency and the second is between the cognitive and the conative respectively:. S v Mahlinza  lays out the general principles relating to criminal capacity and mental illness. One night, the accused in casu , a devoted mother, had taken off her clothing and placed it on a fire. She had then placed her baby and her six-year-old daughter on the fire, and stood at the door of the kitchen to prevent them from escaping.
The baby was burnt to death; the six-year-old escaped with burns. The psychiatrist who examined the accused reported that she was laughing and was generally very rowdy, and could not give an account of herself or of her behaviour; she was disorientated and had no insight into her condition.
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The psychiatrist diagnosed a state of hysterical dissociation. She was charged with murder but found to be insane, and thus not guilty. Should the investigation show that she did not have criminal capacity, the necessity for an investigation as to fault in the technical sense, and as to the voluntariness with which the offence was committed, falls away. The decision in each case depends on the particular facts and the medical evidence.
In accordance with the recommendations of the Commission, section A of the CPA now provides for the declaration of certain persons as dangerous criminals, and section B for the imprisonment, for an indefinite period, of such persons. Even before the Booysen Commission, however, the courts were not prepared to accept psychopathy, in and of itself, as exempting an accused from criminal liability, or even as warranting a lesser sentence on account of diminished responsibility.
In S v Mnyanda ,  the accused was convicted of murder. In an appeal, he argued that his psychopathy should have been regarded as a mental illness, and thus as a mitigating factor. The court found that the mere fact that an accused may be regarded as clinically a psychopath is not a basis on which he may be found to have diminished responsibility.
Only when, in respect of a particular misdeed, it can be said that the psychopathic tendency was of such a degree as to diminish the capacity for self-control to such a point that, according to a moral judgment, he is less blameworthy, will the law recognise his diminished responsibility. Whether or not the verdict in insanity cases is tantamount to an acquittal, from which no appeal is allowed, and whether the State may appeal against a verdict of not guilty by reason of mental illness or defect—these conundrums have not yet been answered by the courts.
The court held that he was not criminally responsible for the killing. The South African Law Commission, recognising this injustice, proposed that such a person be committed to an institution only if he has not recovered or continues to pose a danger to himself or to society. Sections 46 to 48 of the Mental Health Care Act  provide for periodic review of the mental-health status of State patients, application for their discharge and various provisions governing conditional discharge. In terms of section 78 1B , whenever the criminal responsibility of an accused is in issue, with reference to a commission or omission which constitutes an offence, the burden of proof will be on the party who raises the issue.
In S v Kalogoropoulos ,  the court held that an accused person who relies on non-pathological causes in support of a defence of criminal incapacity is required in evidence to lay a factual foundation for it, sufficient at least to create a reasonable doubt on that point. Section 78 7 of the CPA provides that, if the court finds that the accused, at the time of the commission of the offence, was criminally responsible, but that his capacity to appreciate the wrongfulness of the act, or to act in accordance with an appreciation of that wrongfulness, was diminished by reason of mental illness or mental defect, the court may take that fact into account when sentencing him.
The accused acted with diminished responsibility in S v Mnisi. The fact that he had acted with dolus indirectus had also not been taken into account. Deterrence was of lesser importance in this case, the SCA held, because the evidence did not suggest that the accused had a propensity for violence; he was unlikely to commit such an offence again. Non-pathological criminal incapacity must be distinguished from mental illness. A person may suffer from mental illness, and nevertheless be able to appreciate the wrongfulness of certain conduct, and to act in accordance with that appreciation.
In R v Bourke ,  the accused was charged with rape; he was acquitted as a result of intoxication. The court held that absolute drunkenness is not equivalent to insanity. It would follow that the regular drunkard would be more immune from punishment than the sober man. In S v Johnson ,  the leading decision on intoxication prior to S v Chretien ,  an accused was found guilty of culpable homicide despite the fact that the court accepted the psychiatric evidence that the accused was so drunk that he did not know what he was doing at the time of the offence.
This case therefore reaffirmed the principle in Bourke that voluntary drunkenness is no excuse. In Chetrien , the Appellate Division reconsidered Bourke and Johnson , and eradicated the traditional approach to voluntary intoxication. It firmly adopted a course based on legal principle. The facts were these: While under the influence of alcohol, Chetrien had driven his car into a crowd of people standing in the street.
One was killed; five were injured. On charges of murder and attempted murder, the trial court found the accused guilty of culpable homicide, but acquitted him of attempted murder. The issue on appeal was whether, on the facts, the trial judge, Friedman J, had been correct in law to hold that the accused, on a charge of attempted murder, could not be convicted of common assault where the necessary intention for the offence had been influenced by the voluntary consumption of liquor.
Friedman J had accepted that, in his drunken state, the accused had expected that the people would move out of his way. There was some doubt, therefore, as to whether he had the requisite intention for common assault. Friedman J found that he was bound by Johnson. Friedman J thus brought to issue the question of whether, subjectively, the accused had the requisite intention for common assault of the five injured persons. The majority of the Appellate Division concluded that even common assault requires intention to assault.
If this intention is lacking due to voluntary intoxication, there can be no conviction. It was found that Chetrien had had no such intention. Rumpff CJ held that the rule in Johnson was juridically impure, and that voluntary intoxication could be a complete defence to criminal liability. The latter would have no defence; the former would be acquitted if he was so drunk that his conduct was involuntary, making him unable to distinguish right from wrong, or unable to act in accordance with that appreciation. Voluntary intoxication was thus removed from the direct influence of policy considerations, and placed firmly on the basis of legal principle.
The result is that it can now affect criminal liability in the same way, and to the same extent, as youth, insanity, involuntary intoxication and provocation. Intoxication of a sufficient degree, therefore, can serve to exclude the voluntariness of conduct, criminal capacity or intention. Should a person who commits a prohibited act while extremely intoxicated escape all criminal liability?
In January , after receiving extensive comment on a working paper, the Commission published a report and a draft Bill. After its passage, it came into operation on March 4, The Act  contains two short sections, the first of which provides that. In S v Vika ,  the appellant was convicted in a regional court on two counts of contravening this section. The prohibited acts were murder and attempted murder. Regarding the appropriate punishment, the magistrate applied the provision that such a contravention could attract the same penalty as that which might be imposed for the unlawful act itself.
When the appellant appealed against the sentence, arguing that it was startlingly inappropriate, the High Court held that the magistrate seemed not to have appreciated the difference between the offences of which the appellant had been convicted, and the offences of murder and attempted murder. These amounted to misdirections, and entitled the court to interfere with the sentence. It is important to remember, therefore, that to be convicted of an offence in terms of section 1 1 of the Criminal Law Amendment Act is to be convicted of a unique statutory offence, described in detail above, and not of the ordinary common-law offence.
Section 2 of the Act provides that, whenever it is proved that the faculties of a person were impaired by the consumption or use of a substance when he committed an offence, the court may, in determining an appropriate sentence, regard as an aggravating circumstance the fact that his faculties were so impaired.
The Law Commission was not in favour of this provision. Section 1 1 does not specify voluntary consumption. Under the Act, such a person would escape liability on the basis that he did not know that the substance he was drinking would have the effect it did. Another problem is that the Act refers only to a lack of criminal capacity. What about involuntary conduct and intention? Chetrien had criminal capacity, but he was acquitted on the ground that there was reasonable doubt as to whether he possessed the requisite intention to commit the crimes wherewith he was charged.
He would also escape liability under the Act, because his intoxication did not lead to lack of criminal capacity, but rather to lack of mens rea. There is, finally, a problem in respect of onus. According to general principles, the burden of proving the presence of all the elements of the crime, beyond reasonable doubt, rests on the State. The state thus bears the burden of proving the opposite of what it normally has to prove. The difficulty arises when the two offences are used in the alternative.
Snyman posits the following:. If X is charged with assault and the evidence shows that he was only slightly drunk at the time of the act, he will not escape the clutches of the criminal law, because he will then be convicted of assault and the only role the intoxication will play will be to serve as a ground for the mitigation of punishment. If the evidence shows that at the time of the act he was very drunk [ In this way the section could undoubtedly lose much of its effectiveness.
In S v Mbele ,  the accused was charged with theft in a magistrate's court. It was insufficient, therefore, for the State to take matters only so far as uncertainty as to whether his faculties were impaired to the necessary degree. The court found that the State had not proven impairment of the accused's faculties. He could not be convicted, therefore, of the offence of contravening section 1 1.
The conviction and sentence were accordingly set aside. In S v September ,  the appellant stood trial in a Provincial Division on charges of murder, assault with intent to do grievous bodily harm, theft and malicious injury to property. The trial court found. On appeal, the appellant argued that the evidence was indeed of such a nature as to cast doubt on his criminal capacity, and that the trial court had correctly found that he could not be convicted of the charges laid against him.
It was, however, further argued that positive proof was absent of a lack of criminal capacity, and that the appellant ought accordingly not to have been convicted on section 1 1. The court stressed the fact that it was the task of the trial court, in every case, to decide whether the accused indeed lacked the requisite criminal capacity.
Three psychiatrists had testified as to the appellant's alleged state of intoxication. They differed widely in their opinions. The trial court had accepted, without furnishing reasons for so doing, the evidence of the psychiatrist whose opinion it was that the appellant had lacked criminal capacity. This indicated that the trial court had not examined the question of the appellant's criminal capacity to the requisite extent. The evidence as a whole, therefore, had to be assessed anew.
After reassessing the evidence, the court found that no reasonable doubt had been cast on the appellant's criminal capacity. The evidence was furthermore sufficient to lead to the conclusion that the appellant, beyond reasonable doubt, was guilty of contravening the original counts. The court therefore set aside the convictions on section 1 1 , and substituted convictions on the original charges. Roman and Roman-Dutch law did not regard anger, jealousy or other emotions as defences for any criminal conduct; they were only factors in mitigation of sentence, and even then only if they could be justified by provocation.
Section of the Transkei Penal Code of influenced the adoption by the courts of the view that provocation could never be a never be a complete defence to a charge of murder; at most it could be a partial defence. The Code provided that killing which would otherwise have constituted murder could be reduced to culpable homicide if the person responsible acted in the heat of the moment, as a result of passion occasioned by sudden provocation.
S v Mokonto  saw a change from the objective to a subjective test. The accused believed that the death of his two brothers had been brought about by the evil powers of a witch. He was convicted of murder. Holmes considered section of the Transkeian Code, with its provision that "homicide which would otherwise be murder may be reduced to culpable homicide, if the person who causes death does so in the heat of passion caused by sudden provocation. Any wrongful act of such a nature as to be sufficient to deprive any ordinary person of the power of self-control may be provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool.
This did not correlate, Holmes found, with the Roman-Dutch notion that provocation is not a defence. It is judicially recognised that intention to kill is purely a subjective matter. Since the test of criminal intention was now subjective, and since earlier cases of provocation applied a degree of objectivity, it might be necessary, he thought, to consider afresh the whole question of provocation.
On the other hand, he noted, the facts of a particular case might show that the provocation, far from negativing an intention to kill, had actually caused it. The crime would then be murder, not culpable homicide. The test for intention being subjective, it seemed to Holmes that provocation, which bears upon intention, must also be judged subjectively. In crimes of which specific intention is an element, therefore, the question of the existence of such intention is a subjective one: What was going on in the mind of the accused?
Provocation, Holmes held, is relevant to the question of the existence of such intention. Subjectively considered, it is also relevant to mitigation. S v Laubscher  dealt with the defence of temporary non-pathological criminal incapacity. He was charged with and convicted of murder and attempted murder.
His defence was that he had acted involuntarily, since he had lacked criminal capacity at the time of the commission. To be criminally liable, a perpetrator must, at the time of the commission of the alleged offence, have criminal liability. The doctrine of criminal capacity is an independent subdivision of the concept of mens rea. In the present case, the defence was one of non-pathological incapacity. Where a defence of non-pathological incapacity succeeds, the accused is not criminally liable; he may not be convicted of the alleged offence.
He must be acquitted. Because he does not suffer from a mental illness, or from a defect of a pathological nature, he may not be declared a State patient either. Laubscher had experienced a considerable amount of stress in the period leading up to the incident. He was an emotionally sensitive year-old with the intelligence of a genius. He and his wife had married young, when she was pregnant, and had struggled financially; he was still a student. Her parents had contributed R80 per month toward their rent, and had taken every opportunity thus afforded them to meddle in the couple's affairs.
Laubscher and his parents-in-law did not get along; he feared his father-in-law. Nor did things improve when the baby was born. The wife did not return to the appellant afterwards—nor did the baby—and, upon reaching majority, began to institute divorce proceedings. She agreed. When he arrived at the farm to pick them up, however, she had apparently changed her mind, so he made arrangements to see his family the following week. The appellant travelled with a loaded gun, since he was driving alone. He arrived at the farm to be told, again, that he would not be leaving with his wife and child.
He went to a hotel, checked in, misspelled his name and other words on the necessary forms, and did not have dinner, although he did have a rum and coke. He went back his in-laws' house and demanded to see his child. His mother-in-law told him he could not. The appellant could recollect nothing after this point. He was woken up the following morning in hospital, with no recollection of what he had done. The appeal court agreed with the convictions on the first four counts.
His actions were goal-directed and purposeful—before, during and after the shooting. Altogether he had fired some 21 shots into various rooms of the house, requiring him to reload his gun at least twice. He had also managed to drive away from the house immediately afterwards, in an attempt to escape.
This was not consistent with automatic behaviour. As to the fifth count attempted murder , the court held that the State had not proven beyond a reasonable doubt that Laubscher had the necessary intention, in the form of dolus eventualis , to kill his child—especially in view of the fact that the whole object of his visit to the farm that evening had been to collect his child. As regards sentence, the court held that the appellant had without doubt been suffering from severe stress, and so his sentence was mitigated.
The defence of psychogenic sane automatism was first raised successfully in the Cape Provincial Division, in S v Arnold ,  where Arnold had shot and killed his wife, Tina, one day at their home. At his trial for murder, it emerged that, like Laubscher, he had been under severe emotional stress at the time of the incident. Having taken a gun with him for protection, he returned home and went into the living room to put it away.
Tina was in the living room; an argument broke out between them. At one point, Arnold banged his gun on the back of the sofa. It went off accidentally, but no-one was harmed. At this, he fired upon and killed her. He claimed later that he had no recollection of aiming and pulling the trigger. Even if it had, though, the court was not satisfied that the State had proved beyond a reasonable doubt that Arnold had criminal capacity at the relevant time.
He was therefore acquitted. After Arnold , there were a number of murder trials in which the accused claimed that he, too, had acted involuntarily or had lacked criminal capacity as a result of severe emotional stress, coupled with provocation. Although the defence enjoyed a measure of temporary success in the then-Supreme Court,  there has thus far been only one case in which it has succeeded in the Appellate Division or in the Supreme Court of Appeal: that of S v Wiid.
For a long time it was unclear that the defence of temporary non-pathological criminal incapacity was at all different from the defence of sane automatism, and if so what the difference was. He had been drinking heavily. He raised the defence of temporary non-pathological criminal incapacity, but this defence was rejected. On conviction, he appealed to the SCA. He concluded that they are one and the same thing. He went on to hold that a normal person can only lack self-control, and hence criminal capacity, if he is acting in a state of automatism.
He also indicated that, although the test of capacity might still remain, in principle, essentially subjective, the application of this test is to be approached with caution. The courts must not too readily accept the ipse dixit of the accused regarding provocation or emotional stress. Both the High Court and the Supreme Court of Appeal drew a pragmatic distinction between loss of control and loss of temper. Persons who may in the past have been acquitted in circumstances where they had killed someone who had insulted them will find that courts will scrupulously evaluate their ipse dixit in the context of objective standards of acceptable behaviour.
Rather than suggesting that the Court replaced the subjective inquiry into capacity with an objective evaluation it is possible to suggest an interpretation of the Eadie case that involves a middle course: Capacity should be both subjectively and objectively assessed. M]ere passivity will not be enough. Strong judicial action is required. Fault is an element of every crime. All common-law crimes require intention except for culpable homicide and contempt of court committed by an editor of a newspaper for which negligence is sufficient.
Statutory crimes require either intention or negligence. Fault refers to the legal blameworthiness of the reprehensible state of mind or careless conduct of a criminally accountable person who has acted unlawfully.