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Abstract

The battered women’s movement in the United States was galvanized in the 1970s and ushered in a paradigm shift in how we understand domestic violence. For women who kill their abusers, the movement attempted to incorporate their lived experiences of domestic violence into legal doctrine. Decades later, the battered women’s movement has generated criticisms such as stereotyping women, failing to take an intersectional lens, and over-reliance on the carceral system. These lessons from feminists in the United States present cautionary tales for other contexts, especially for unequal societies impacted by domestic violence, crime, and mass incarceration. Prompted by personal experiences inspecting prisons across post-apartheid South Africa, I explore why women in South Africa resort to killing their abusers and why these women end up incarcerated with lengthy sentences. I engage with how the law responds–and ought to respond–to women who kill their abusers. After outlining lessons from the battered women’s movement in the United States, I concentrate on South Africa’s transition from apartheid to democracy, with a particular focus on how the government instituted legal reforms to tackle violence against women. I explore the transitional period, noting that the post-apartheid government retreated from progressive forms of punishment, such as correctional supervision, and relapsed to punitive forms of punishment by establishing the mandatory minimum sentencing regime. I show how South Africa’s over-reliance on the carceral system, inspired by the United States’ tough-on-crime zeitgeist, inadvertently extends to women who kill their abusers. After acknowledging empirical gaps in data and uncovering a social movement, I critically analyze various cases involving women who kill their abusers in anticipation of, or after experiencing, cycles of abuse.

I make three key findings: first, there is a lacuna in the criminal law regarding defenses for women who kill their abusers; second, no sentencing norms have been established; third, beyond legal doctrine, practical barriers hinder women’s access to the legal system. I argue that filling defense lacunas, establishing sentencing norms, and rectifying social barriers to access legal assistance are necessary, but not sufficient. I contend that the retributive criminal justice system is not tailored to deal with women who kill their abusers and propose, through a social justice lens, restorative and transformative justice mechanisms to hold women accountable. This paper lays the ground for a constructive dialogue for feminists in post-apartheid South Africa to engage with those in the United States and sets an agenda for further research, reform, and activism.

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