The Quality of Mercy

The Quality of Mercy

In 2001 Anita Ferreira was sentenced to life imprisonment for the murder of her common-law partner Cyril Parkman. The court accepted that she has been severely and extensively abused, but did not find that his abuse was a mitigating factor. This Friday, March 12, the Supreme Court of Appeal will hear her case.

You are 16 and pregnant. Your parents insist you marry the father. You are 14 and have played truant from school for the day to be with your boy-friend. Your very-traditional parents are outraged and insist you get married as soon as you are old enough. You meet a man who assaults you during your courtship but you marry him anyway, expecting no better; this is how your father treated your mother.

You and your husband have been together some time. He beats you on the head with his gun. You and your children live on bread and coffee because he locks up the other food for his exclusive consumption. Your children beg the neighbours for food. You are locked in the bathroom for days at a time. He kicks you, slaps you and punches you. He rapes you, calls you whore, bitch and cunt and interrogates the children to find out where you have been and who has visited you during the day. His sexual abuse of you results in your hospitalisation. You stuff a dishcloth in your mouth when he beats you so that your children will not hear your cries. Your daughter calls her doll "bitch" because that is what her father calls all the females in the household. He takes your money, he stops you from working, and he gives you no money. He shows up at your workplace and causes a scene, accusing your manager of sleeping with you. You are asked to leave to prevent further embarrassment.

You leave him many times but he finds you every time and weeps, promising this time will be different. The local shelter is full and cannot take you in. Your parents have no space to take you in. Your parents are dead. You approach the police but your husband is a police officer. The police are afraid of your violent husband. There is no law to protect you: it is 1992 and there is no law allowing for a husband to be prosecuted for the rape of his wife. It is 2000 and police commissioner Jackie Selebi says the police do not have the resources to implement the Domestic Violence Act. You have no work experience, nowhere to go and children to feed, clothe and shelter. Your family is sick of you and do not wish to hear about your problems any longer.

You are caught fast in a spiral of entrapment, choices diminishing with every failed turn for help. Words die in your mouth. It is as if a barrier has come down between you and the world, which stares back, uncomprehending. If the presence of a heartbeat is the criterion by which we distinguish the living from the dead, then you are alive. But to all other intents and purposes, you have become a stone – inert, inanimate and insentient. Only by amputating all sense of self, all feeling, all hope, are you able to exist. And then one day he threatens to harm – or does harm – one of the children, or beats you so badly that you fear next time he will kill you, or threatens to have you gang-raped, or humiliates you once too often. And in that moment you see very clearly that you will never be able to escape him, that you have become nothing and that this is what you will remain for the rest of your life. And so, in a desperate act of self-preservation, you kill him – because it is either him or you.

This introduction, a composite of the lives of Anita Ferreira, Elsie Morare, Sharla Sebejan, Meisie Kgomo, Harriet Chidi and Maria Scholtz, tries to convey some sense of the slamming brutality of domestic violence. This is crucial to understanding the context in which battered women act.

While the greatest proportion of women kill their abusive partners defending themselves against an attack, there is also a smaller group who kill when no immediate threat seems apparent. Either they have been threatened with serious injury in the future and have no wish to sit back and wait for death by instalment, or they have reached the sort of breaking point described earlier. Because there is a delay between the time of the killing and the last threat to themselves, premeditation is argued and harsh retribution sought. Sentences for this group of women range from 15 years to life imprisonment.

By focusing on the killing alone in order to pass strong judgement we neglect the terrible context of domestic violence and reproduce many elements of abuse in this group of women's lives yet again. Like the batterer who sees little harm in what he does, such lengthy sentences deny the seriousness of domestic violence. The legal desire to impose stringent punishment also bears an uncomfortably close resemblance to abusers' punitive behaviour. As one woman observed, her violent relationship prepared her well for prison life; in killing her husband, she had merely substituted his control for that of the Department of Correctional Services.

Granted, being abused does not entitle you to kill the person who harms you. At the same time we cannot ignore the grave harm of the abuser's behaviour, nor the lack of social support available to abused women. Domestic violence is a crime as well as a profound human wrong. In S v Baloyi the Constitutional Court found that domestic violence violates rights to safety and security, to be free from cruel, inhuman and degrading conduct, torture and the right to be free from all forms of violence. The cruelty inherent in domestic violence should make us pause before inflicting further suffering and oblige us to respond instead with cruelty's opposite – mercy. Being compassionate towards those who have experienced suffering and deprivation is not a sign of weakness.

Anita Ferreira's appeal against her life sentence for the murder of her partner Cyril Parkman will decide the extent of legal mercy to battered women. A positive decision will benefit not only Ms Ferreira but other women in future. What, however, of those women currently serving long sentences who have no legal remedies left to them?

The government has demonstrated some commitment to addressing domestic violence by passing the Domestic Violence Act, signing the Southern African Development Community's declaration to end violence against women as well as the Convention on the Elimination of all forms of Discrimination against Women, and developing a national policy around shelters. Now amnesties to coincide with ten years of democracy are being mooted for particular categories of prisoner. In keeping with the government's actions to combat domestic violence, we urge the president to be merciful and grant amnesty to Elsie Morare, Sharla Sebejan, Meisie Kgomo, Harriet Chidi and Maria Scholtz. Simultaneously he could consider establishing some form of structure to review the sentences of other women currently imprisoned for killing their abusive partners. While women who kill their abusive partners are deserving of mercy as a group, we are not necessarily recommending blanket amnesty. The nature and extent of mercy must be decided on a case-by-case basis.

Being merciful does not imply condoning such killings. However, where harsh retribution focuses solely on the crime, mercy never loses sight of the struggling human being behind the wrong-doer. A merciful approach takes seriously the difficulties abused women face, their social isolation and lack of support, and as a consequence, either holds back from punishment, or mitigates that punishment. As Portia observed in The Merchant of Venice, mercy is "twice blest: it blesses him that gives and him that takes."

Lisa Vetten is the former Manager of the Gender Programme at the Centre for the Study of Violence and Reconciliation.

Originally published in Mail & Guardian, 12-18 March, 2004.

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CSVR is a multi-disciplinary institute that seeks to understand and prevent violence, heal its effects and build sustainable peace at the community, national and regional levels.

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