Some thoughts on the Oscar Pistorius verdict

images-2Here are some important things to know about the verdict given about Oscar Pistorius:

* He was found guilty

* He was found guilty of killing (homicide)

* He was found culpably (blamably) guilty of killing.

Perhaps it is because the South African legal language of culpable homicide is unfamiliar that confounds people abroad’s frustration that he was not found guilty of murder – but in truth, he was found guilt of the equivalent of manslaughter, or murder in the 3rd degree (at least).

I understand people’s frustration that he was found guilty for something less than murder. Believe me, I do.

And yet, I support the judge’s decision and wanted to explain why. Firstly, to be found guilty of murder, there must be evidence not only that the accused actually did the crime, but that they planned to do so. Proving mens rea (or, state of mind) is a necessary component. The rules of evidence require the prosecution to make a case which is beyond reasonable doubt that the accused intended to kill.

Anything less than that: like knowing your actions could possibly kill someone, is something less than full murderous intent. The categories of “lesser murder”, like manslaughter, or culpable homicide (depending on your jurisdiction), still hold people responsible for wrongfully taking life, but don’t have the intention-to-kill aspect.

Pistorius’ defense, flimsy and guilt-ridden as it may have been, pleaded that he did not intend to kill. He thought there might be an intruder in the house, they said. He thought his girlfriend was asleep next to him, they said.

In the handful of articles I have read on this, commentators are aghast that this excuse was considered “reasonable doubt”. Here again, I have a little more compassion. Was the threat of an intruder reasonable? Many say not. In an article from The Guardian, the writer commented that the “imaginary body of the paranoid imaginings of suburban South Africa has lurked like a bogeyman at the periphery of this story.”

To that, I would just want to say that I don’t think it’s fair to categorize the fear of a violent intruder as a fear of the “bogeyman”, or worse yet, a fear of the “black bogeyman”. For in the South Africa I know, the fear of being attacked in one’s home is real, it extends beyond class and colour lines, and it is a fear based on knowing first-hand stories of people to whom such things have happened.

My own personal collection of stories is sadly not uncommon in South Africa: I’ve been mugged twice, my home has been burgled, I have had to call the cops when my sister’s roommate called me from her closet to say that people had broken in to her house and she was hiding lest she be found. I have prayed for another friend’s elderly aunt and uncle who were beaten and raped in their home at night. I have a colleague whose daughter was murdered. I have a friend who lives in a home with the best security money can by in my mother’s neighborhood, and she has told me of the armed robbery in their home one evening just before dinner.  I have heard more whispered stories of rape than I can bear. I have felt the desire to murder in response.

A friend of mine posted this status update on social media this past week: “So in the news this evening: woman employee raped while at work at Helen Joseph, woman raped by burglars at Stellenbosch res, woman raped by man wanted by police for 10 years, durban high school employs a known paedophile who continues his abuse at the school and four teenagers convicted of raping a 10 year old boy as part of a game. And that’s just tonight’s news.”

World out there: it’s not an unreasonable fear.

Is it plausible to argue that a South African in the middle of the night might fear there was someone in their house wishing them harm? It might be. It might be considered reasonable. In South Africa, perhaps more so than many, many places in the world, it may be enough to raise reasonable doubt as to why someone might respond to a nighttime threat with a gun.

And so, in the tragic case of Reeva Steenkamp and Oscar Pistorius, as much as I also long for justice to be fully realized, I also want to show support for the limits of what the judge could do. For to convict of murder, there needed to be proof of murderous intention, and the proof needed to be beyond reasonable doubt. Not just “he probably meant to kill her”. But “I am absolutely persuaded he intended to kill her, in particular.”

And given the context, and the fear that every single South African deals with – including the black, female judge who was called to weigh this matter, I am not surprised that the ruling was that there was a smidgen of reasonable doubt. Enough to find him guilty of killing her. Just not enough to find him guilty of doing so premeditatively.

And so, as the world awaits the sentence next month, I too am one hoping that he will be sentenced to the maximum jail time for his offense. And I take comfort in these things:

* He was found guilty

* He was found guilty of killing

* He was found culpably guilty of killing,

and, as a friend rightly pointed out, the most important thing of all is this:

* He still bears the lifelong burden of conscience and the need to be made right before God.

Just a few of my thoughts. For what it’s worth. (Since more than a few have asked for my once-upon-a-time-I-went-to-law-school-in-South-Africa opinion.) Holding my breath for sentencing day, and along with you all, hoping for justice.

19 thoughts on “Some thoughts on the Oscar Pistorius verdict

  1. Thank you, Bronwyn, for your unique perspective. It’s not a case I’ve followed, but I did read an article about it recently before the final verdict came. I really appreciate you writing this up for us who don’t know South Africa.

  2. Hi Bronwyn.
    Good analysis from far away. My view is that you are correct and so is the judge. However, I have strong suspicions that Oscar has been less than truthful, and he will live with that for the rest of his life.
    One of the interesting things to possibly come out of it is that if you are a criminal robbing a home and you are met with the same kind of violence you are used to dishing out, the law will not protect you. Often in the past, it has.
    I think Oscar’s actions immediately after the shooting are what saved him. Had he phoned a lawyer or “fixer” to fix the mess, he would have been found guilty. But he phoned the security etc and tried to save her.
    One thing is for sure. I am glad I am not a judge, or The Judge.
    Keep well all those miles away.
    David

  3. Thank you for giving us important insights into South African society. Nevertheless, unlike you, Bronwyn, I am praying not “for justice” and incarceration but for mercy. I met my future husband in Canada the night before the funeral of the woman he intended to marry. I gradually learned that she had not been “killed in a shotgun accident” in Florida, as the family had whispered, but had been murdered by the almost-ex wife of her intended husband. Both members of that new couple were waiting for their divorces: Maddy had discovered her husband was homosexual. Dick knew his wife was irreparably crazy. Dick has written about that murder, our meeting, and his coming to Jesus in The Turning Year: a memorate. We were aghast when the murderous woman was judged “not guilty by reason of insanity from before puberty.” We were frightened when she was released into out-patient treatment that was ill-attended and ended in less than six months (which also seemed to us a ridiculously short mandated period of treatment). We were devastated when she gained custody of the 5-year-old daughter. That woman made death threats after our marriage. But God led us through the fallout from that tragedy, step by difficult step. Eventually, the mentally ill woman came back to the Lutheran faith she was raised in. She earned a degree and kept a responsible job in a university. She kept one partner for a number of years and, later, formed an even more stable relationship. If she had been warehoused in a wretched penal system, she would have been returned to freedom a much more dangerous individual. Meanwhile, her mental illness and my fairly close view of it became part of the broad spectrum of mental conditions that informed my ground-breaking discoveries about the role of the ear in mental illness (and in all human behaviour). The role of Pistorius’s ear(s) in his killing of his girlfriend cannot be entered into the court record in South Africa any more than such information is considered useful to a court in Canada or the US. That legal mind set is going to change because my discoveries have turned the science of behaviour into a true science. Two hundred delegates to the International Association of Music and Medicine have heard from me that high-frequency sound alters the physiology of the ear to change states of consciousness and, therefore, behaviour patterns. Several researchers at that conference are moving towards the same learning (but at a slower pace because they have been preoccupied with low-frequency sound treatments). Pistorius was not sufficiently awake to make a fully rational decision. His right brain was more dominant in his state of consciousness when he reached for his weapon. Those are distinctions in the activity of the muscles of the middle ear that characterize the array of symptoms that distinguish sleeping from awakening and awakening from full alertness. In South Africa, as you so importantly explain, the subconscious (right brain) has learned DANGER comes into the most private of places. The rational mind (left brain) knows even in reduced states of alertness that DANGER can be combated with force and force is approved in the society. Pistorius would have to have been raised in a strongly pacifist home in a relatively safe country to have responded other than he did. He is FAR LESS GUILTY than anything read into the court record could possibly let us know. The mechanism of self-control resides in the ear, and his ear could not have made him fully self-controlled under the circumstances we have heard about in his trial. Nothing we know about his wakeful behaviour suggests that he is any more murderous or dangerous than anyone else raised in his country, or, for that matter, in the gun-toting USA. He will continue to be a victim of the ignorance of the judge — as are all individuals brought before any bench or jury in the world at present. If you better understood the way your own ears control your changing states of consciousness, you might alter your notion of “justice” for Oscar Pretorius. And if he knew anything about the way his ears control his brain function, he could have mounted a persuasive defense.

    • What a story you and your husband have! Wow!

      You have commented a number a times explaining about how the ear affects behavior: explanations which are new and hard for me to understand, but which are fascinating too. It must change the way you perceive EVERYTHING in the world. If we ever get to meet in real life, I would love to hear your thoughts on how your research about otic-driven behavior relates to sin, as the bible describes it. Maybe at the next redbud retreat?

      • Thanks for your interest, Bronwyn! In the moment when I realized what was happening in our schizophrenic son’s brain — the left half of his brain was becoming more dominant than his right brain — in response to the stimulation of his right ear with amplified high-frequency music, everything I had ever thought about behaviour in a lifetime of fascination with and study of behaviour made a paradigm shift. Much like the changes in Dick’s thinking when I first talked to him about Jesus and I could see chunks of his thinking process rotate like scene changes on a revolving theatrical stage. I have been forging a reply to a lovely comment of Sharon Hoover on free will because, as you have made the quantum leap forward to perceive, this scientific knowledge of the foundations of behaviour will force Christians to understand the biblical definition of “sin” differently. Why Jesus forgave people in flagrant disregard for the assumptions built into Judaic thought becomes crystal clear: He HAS opened the Kingdom of Heaven to all believers, whether or not they are sinful. I do not think my learning deviates from the teachings and example of Jesus, any more than modern surgical techniques supplant His healing methods, but simply expands on His work. If you send me your email address I will send you my draft of my neurological teaching on free will. Essentially, a person with audio deficits has no free will because the body cannot respond to rational, left-brain thought. An argument like Karen’s is based on the assumption that people either are or are not rational and if they are non-rational, culpable. That is not true. Normal people pass through varying states of consciousness in the course of a day; the condition of the ears in sleep is the same as schizophrenia. Wakening is a grey area as the neurology shifts and the ear and body muscles stir into action and takes place more slowly for some people than for others. David points out that Pistorius behaved more rationally as the situation developed, doubtless because his left brain had become more dominant despite his shock and horror as his right ear kicked into action. Furthermore, he may not have perfect audition at the best of times. Laura’s argument is very important — our youngest son is legally involved in an unconstitutional Canadian law that NEGATES the presumption of innocence; the ramifications of that violation of fundamental rights are dreadful. Laura also mentions her self-awareness of “mania,” and the way she compensates for her “instability.” A person wakening from sleep often will be unstable in precisely that way, but does not yet have the left-brain control to make decisions and enact them. Even if rational thoughts occur, the body is incapable of responding. The right brain is too dominant. Ask me about a husband who isn’t sufficiently awake to be civil until he has finished his morning tea! Pistorius is not lying; but neither does he have the understanding and language to explain himself adequately to others, any more than our son Dan could have explained his mental illness to us or to himself. No one could, until I discovered how the ear controls behaviour.

  4. I must disagree. In SA law there is a form of murder between premeditated and culpable homicide, and that is dolus eventualis murder, namely that you are responsible for the foreseeable consequences of your actions. Anyone firing 4 shots through a bathroom door into a tiny cubicle can expect the possibility of killing the person behind. Then it is murder. Thus I think the judge erred.

  5. Sorry Bronwyn, I don’t buy it.
    I too live in South Africa. Yes, we are aware of crime, constantly scanning the neighborhood as I drive home at night, ensuring I am not followed.
    I have been to the complex where Oscar lives, it is a fortress, high walls plus electric fencing. To visit someone, you must produce your id book.
    So to buy into the intruder story, you have to believe that he thought there was an intruder in his second floor bathroom, he didn’t check where his loved one (Reeva) was before approaching the bathroom and he fired four shots without checking who was in the bathroom. Sorry, I smell manure.
    Oscar has proved he has a history with guns and with getting his own way. I grew up on a dam, so when his story hit the press about his boating accident, I thought things didn’t add up.
    To anyone who has ever been in an abusive relationship, the signs are all there. I’m just glad my ex didn’t have a gun, or I might be like Reeva now.
    No, Oscar is taking advantage of the crime in South Africa to justify his actions. It wouldn’t be legal to fire upon an unarmed intruder through a closed door either.
    Oscar Is obsessed with guns, the bullets that killed Reeva are not standard, they are even more deadly.
    He rages when he doesn’t get his own way and cries to try and get out of trouble.
    Personally, I am deeply disappointed by the verdict. I feel that money allows you to get away with murder in South Africa.

    • Hi Karen – I agree totally with your opinion. However, because the investigation was botched & flawed from the beginning, if the Judge found him guilty of premeditated murder Oscar would have appealed this sentence and the chance would have been greatly in his favour to win the appeal. I believe that the Judge was being tactical here in that if she found him guilty of manslaughter, then the chances of him winning his appeal would be extremely slim, and she will therefore go for the maximum sentence.

      • Hi Ronnie, that is partly in line with my way of thinking, but suggesting that someone who shot at a target at point blank range with bullets designed to cause maximum damage had no intention to kill (or they would have shot higher) doesn’t fit into this shared view!

  6. I appreciate your thoughts, Bronwyn. I had wondered what you thought of this case, given your legal background in South Africa. The culpable homicide verdict made sense to me; murder didn’t. (Pistorius seems to react, rather than think through his actions before doing them. He thinks after he acts, when it’s too late to undo what he’s done. I’ve seen the same tendency in myself when I’m manic, which is why I don’t ever get online or drive a car when I’m unstable, and have never owned a gun.)

    I think part of the confusion people have about these laws isn’t just that they’re unfamiliar with South African law; it’s that most people–even reasonably well-educated people–don’t understand the law, period. I saw this after the Casey Anthony verdict. Facebook friends were livid that the jury didn’t find her guilty: “Are they idiots?! We all KNOW she’s guilty!!!” was the constant refrain. They didn’t understand that the burden of proof lies on the prosecution; a person is innocent until proven guilty; guilt must be proven beyond a shadow of a doubt for whoever is rendering the verdict. Therefore, if the prosecution fails to prove beyond a shadow of a doubt that the person is guilty, then the jury needs to acquit (or find guilty on a lesser charge, such as manslaughter, etc.)

    LIkewise, many people don’t seem to understand why someone could have committed a crime and have been acquitted, and thus be “innocent” in the eyes of the law when they are morally guilty.

    Long comment, sorry. But the verdict made sense to me.

  7. Hi Bronwyn,

    As much as I agree that this was an extremely difficult case to rule on with no real witnesses to the event,I cant help to think what the outcome would have been had Oscar not been a white celebrity that could afford Barry Roux and his team.There are hundreds of murder cases in South Africa every year and none of them get this kind of publicity which makes me think that this was not a true reflection of the South African justice system but more a show to the rest of the world that the system works and that it is ‘fair’.

  8. Nice blog, Bronwyn. I think the judge would have come under fire no matter which way her decision went. There are many people who believe that Pistorius is ‘innocent’.

    Given the evidence, it was always unlikely that the prosecution would have been able to prove beyond reasonable doubt that Pistorius intended to kill Steenkamp. However, there is strong case to be made that he intended to kill whoever was behind that bathroom door.
    Without warning, Pistorius fired 4 ‘maximum damage’ bullets through a closed door into a small room. Even on his own version of the intruder story, he would have done this, so that the person behind the door (once the door would eventually be opened) would be ‘down’, ie unable to act, possibly lethally injured. By going ahead with firing 4 bullets, he accepted this outcome. This is sufficient for intent.
    Possibly the prosecution didn’t prove this scenario, or the judge has a contentious idea of dolus eventualis – we might find out if the prosecution decides to appeal.

    I think what grates with a lot of people (including the judge) is that Pistorius’ own version of events simply doesn’t add up and the realisation that the criminal process is in fact pretty inadequate to deal with a dishonest accused, especially if he/she can afford expensive lawyers. Hence the sentiment that he is ‘getting away with murder’.

    I don’t share your trust in Pistorius receiving a harsh sentence. It wouldn’t surprise me if he received a suspended sentence. Ironically, I think it would work to Pistorius’ advantage if he got a short (non-suspended) prison sentence which would see him paroled after 3 or 6 months, because his supporters could argue that he ‘did his time’.

    • Thanks for weighing in, Ute. As Laura said, I think much of the frustration is that OP will not be found guilty for what he actually did. He will be found guilty for what the prosecution could prove beyond reasonable doubt that he did. The laws of evidence are meant to underpin the principles of justice, but in some circumstances they can seem to frustrate them, I suppose.

  9. Hi. I quite agree with your article. I live on a farm in the Free State and am constantly in a state of high alert. Farmers and others are brutally raped and killed. I understand Oscars fear. When you have family members murdered in front of their young children, neighbours brutally attacked and burned with irons, well the list goes on…….you constantly live in fear. The police do little, dockets get misplaced and even lost. It by no means makes what Oscar did right, but , i certainly understand his fear..

  10. Hi Browyn, to give any acknowledgement to his “paranoid fear of intruders” is to give the conceited lies a ring of truth – did this “paranoid fear” extend to securing his house, fixing the broken intruder alarm or closing the balcony doors? The answer is no. The rest is total BS, and I am staggered so may people buy into this shameful, pathetic lies – did you see his Testimony? It was dreadful, full of lies and inconsistencies which would have been laughable if it wasn’t for the circumstances. But I am with you that it is no surprise that he has been found Guilty of Cuplable Homicide and similarly I want the maximum sentence handed down – on the plus side the Defence have nothing really to Appeal and seek acquittal – for sure the NPA will act, Justice has to be seen to be done, Masipa’s ruling will set a dangerous precedent if it is allowed to stand. If you think South Africa was a bad place it just got a hole lot worse when this verdict was handed down. Part of me thinks Judge Masipa is more clever than we think anyway. I want 15+ years, wherever he goes in life he will always be hounded and harried and rightly so for the cowardly murder of a woman.

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