Getting away with murder?

On the grounds of infidelity? Depends where you live

The Six Nations rugby tournament is in full swing, and we know that South Africans enjoy rugby, even the northern hemisphere version. But did you know that traditionally Welsh rugby supporters sang the song Delilah, by fellow Welshman Tom Jones, at matches? The song has nothing to do with rugby but it has a rousing chorus that is easy for a large crowd to sing, and it has Welsh roots. Most supporters have probably never given a second thought to the lyrics. If they had, they might not have belted out the tune so fervently. Delilah tells the story of a man who passed his girlfriend’s house to witness her engaged in an act of sexual infidelity (poetically described as “the flickering shadows of love on her blind”). He waited until the lover was gone, then stabbed Delilah to death when she opened her door. The Welsh Rugby Union has now banned fans from singing this song, a move Welsh Women’s Aid has demanded for years, as the song normalises and almost glorifies violence against women.

Infidelity excuses murder in Scotland!

Now here’s a fact we at SD Law just learned. In another of the Six Nations, Scotland, the fact that the deliberate killing, i.e., murder, of a woman took place against this background would justify the reduction of the crime from murder to culpable homicide. Scots law allows a special kind of mitigation, namely legal provocation on the basis of sexual infidelity, which would serve to reduce the crime from murder to culpable homicide. The wronged partner could claim legal provocation even if he or she did not witness the unfaithful act. It would be enough for the partner to admit the infidelity.

English law

This is not the case in yet another of the Six Nations – England (and Wales – England and Wales share a legal system, but Scots law is entirely separate). Under English law, “male possessiveness should not today be an acceptable reason for loss of self-control leading to homicide”, although that judgment only dates from 2000. The Coroners and Justice Act 2002 followed, providing “in determining whether a loss of self-control has a qualifying trigger, the fact that a thing done or said amounted to sexual infidelity is to be disregarded”. It is hard to believe that it took until 2002 to disqualify this mitigating circumstance for murder! And even harder to believe that it still exists in Scotland, a country otherwise known for progressive social legislation.

South African law

What about South Africa? Once again, our enlightened Constitution puts us ahead of much of the international community. In South Africa infidelity is not considered a mitigating circumstance in the case of murder. South African law recognises that all individuals have the right to equality and freedom from discrimination, and this extends to cases of domestic violence and murder, regardless of the motivations behind the crime. A person who murders their partner can be charged with murder, regardless of whether the motive was jealousy, anger, or any other reason. The punishment for murder in South Africa is a prison sentence of life imprisonment or a sentence determined by the court.

Social challenge of femicide

It’s reassuring to know we have such a sound legal framework. Our Constitution is the envy of the world. Sadly, the lived experience of many South Africans does not match the ideals set out in our Constitution. According to the World Population Review, our femicide rate is 9.1 murders per 100,000 women – the sixth highest rate in the world, behind only El Salvador, Antigua And Barbuda, Jamaica, Venezuela, and Central African Republic. Something is failing our women, and it is not our legal system. Violence against women – whether physical, sexual, emotional, or a combination of these – is out of control, and has been for a very long time. We turn a blind eye to gender stereotypes and misogyny, or we fail to see it altogether, so deeply entrenched is it in our culture. 

We’ve written before about toxic masculinity. Although that phrase has become overused to the point of cliché, we won’t stop speaking out against gender-based violence and gendered power inequalities in South Africa. And men who believe that women are possessions, or that violence is a sign of toughness, and vulnerability is a sign of weakness…men like Andrew Tate…are part of the problem. 

Don’t be afraid to seek help

SD Law & Associates are experts in family law and have dealt with many cases of abuse in intimate relationships. If you are living with an abuser and considering divorce, or just want to discuss your options, we can guide you through the process with compassion and dignity. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Vulnerable masculinity
• Gender-based violence and femicide
• 16 Days of Activism for No Violence Against Women and Children
• Andrew Tate is a misogynist and a narcissist

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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