25 January 2016

Why Oscar must not succeed in the Constitutional Court

CyberShrink reviews the dangers to South Africans’ rights if the Pistorius appeal succeeds in the Constitutional Court.


The best possible outcome of the Pistorius appeal to the Constitutional Court, from the point of view of the nation and its laws, would be for it to be thrown out without more time and money being wasted. These legal “contortions” show how a system can be damaged when people have enough money to squirm around evasively and try to find ingenious ways to avoid accepting responsibility for their action.

Is Oscar disabled or not? 

Once upon a time, Oscar was a heroic champion of the disabled, demanding to be treated equally and without special concessions for his handicap. He insisted on being allowed to compete at the highest levels with the able-bodied. “I’m not disabled,” he told a British journalist in 2005. “I just don’t have any legs.” All through his athletic career he’s downplayed the impact of his disability. Was he lying then, or is he lying now?

Read: SA's disabled trapped in cycles of poverty

In a 2007 New York Times article it was reported that he refused to park in disabled bays: “I don’t see myself as disabled,” he said: “There’s nothing I can’t do that able-bodied athletes can do.”  Earlier, in another interview, he asked rhetorically: “Anyway, what is disabled?” He carried on: “Some people view themselves as disabled because they have one or two disabilities … but what about the millions and millions of abilities they have?  So what if you have a leg or two missing?”

However, after the Reeva incident he changed tactics, and has since presented himself as a snivelling wreck, demanding special treatment because of his disability, insisting that he should not be treated equally, and that, indeed, the constitution and law must be changed to allow a lower standard of personal responsibility for men without feet.   

Demanding special rights 

What the Constitution guarantees is equality before the law. We must be treated absolutely equally by the law, no exceptions! But Mr Roux apparently finds this objectionable. Oscar was not, as has been dramatically claimed, discriminated against on the basis of his disability. He had absolutely no special rights, based on disability, which were ignored, and in no way did any discrimination take place because he was disabled.  

Read: Psychiatrists unite against discrimination

Mr Roux is apparently outraged that he did not receive special treatment – something that is not required by law.  The SCA in no way penalised Oscar for being disabled or for feeling anxious and vulnerable, but what annoys Roux is that they failed to actually reward him for this. Roux’s rules require that courts should discriminate in favour of guys without feet. There’s a difference between treating someone badly because they have red hair, and ignoring their red hair when assessing the relevant aspects of the case.

‘The guy in the Diepkloof taxi’

The law, apart from guaranteeing us all basic rights, also imposes some basic and universal responsibilities. The concept of the reasonable and average person is highly important in establishing what is expected of us. Our choices and actions are assessed in relation to what the average person would do. What the British courts used to call “the man on the Clapham omnibus” we might translate as “the guy in the Diepkloof taxi”.

But Mr Roux insists that there must be a separate set of standards that apply only to Oscar – and much more lenient than those that would be applied to anyone else. A man with no legs, he bleats (actually Oscar has excellent legs down to just below the knees – it’s feet he lacks) can’t and mustn’t be held to the same standards as anyone else.  What matters in law is our ability to think clearly enough to be able to tell right from wrong and to act on that distinction. Oscar does have that ability, as every shrink who has ever seen him has testified.   

Fallacies about anxiety and depression

Mr Roux even seemed to argue to the Constitutional Court that Oscar is owed leniency on the basis of severe anxiety. Again, let us be clear: only the psychiatrist called by Roux found Oscar to be significantly anxious, and even she was very clear that this did not in any way diminish his criminal responsibility, or his capacity to tell right from wrong, or to behave accordingly. None of the psychiatrists or psychologists who assessed him found his mental state in any way relevant to his responsibility for his actions.

Read: Oscar Pistorius does not need psychotherapy

Our mental capacity lies within our brains, not in our feet, Mr Roux. Suggesting otherwise is a shameless exploitation of Oscar’s disability.

There isn’t a shred of evidence that Oscar was less able than anyone else to figure out that shooting four Zombie-stoppers into a small space would be likely to kill whoever was there. And anxiety is an extremely common condition. Should a burglar be excused because he was feeling fretful during a break-in?  Why penalize a drunk driver if he claims he drank because he was feeling anxious?

If Mr Roux got his way, the law would have to establish a different set of different expectations for anyone accused of anything. If the man with no feet cannot be found to have committed murder, maybe the fellow with just one foot would be found guilty of half a murder! And so on. The law would become idiotic and unmanageable. What about the man with two feet but nasty ingrown toenails?

The appeal also seems to claim that Oscar suffers from significant depression, and that this should have been taken into account. There was never any evidence that he was significantly and seriously depressed during the trial, such that it might have affected his ability to testify. No competent expert found him to be depressed to the point of affecting his judgement or culpability, and nobody proved that there was the slightest sign of depression before the shooting – and obviously your state of mind after your crime has no bearing on the case.

Judicial mind-reading

What an accused believes can never be regarded as evidence, and if a judge chooses to believe what the accused claims to believe, that is an act of faith, and an opinion. It is not, and can never be and never ever is, an actual, objective fact.

Mr Roux seems ambivalent about facts, and seems to reject even the concept of the rational person. He complains in horror when the SCA introduced “an element of objectivity” into the test for self-defence.  We’re told that “only his subjective state of mind mattered”! Subjective states of mind cannot be proven and need to be tested against other evidence, not blindly accepted.

Read: Judge Masipa 'reads' Oscar's mind

Heaven knows where we might end up if the courts rejected objectivity in favour of the best invented story, or perhaps artistic merit.   

Blame the media!

Some have suggested that Oscar should have argued that he did not receive a fair trial, due to prejudice by the media presence and the televising of the trial.

This is far-fetched nonsense as celebrity trials have been subject to media attention since time immemorial, and indeed in earlier times in far greater detail – with verbatim accounts of testimony reported on radio and in newspapers, even with drawings of witnesses. 

If the appeal gets heard by the Constitutional Court at all, let’s hope they translate the whole dolus eventualis gobbledegook into basic and unambiguous English and remove the confusion; and that they also tidy up the present artificial restrictions on what aspects of a case an appeal court can consider. Any appeal court should be required, not merely allowed, to consider and make fresh findings on any relevant aspect of the case brought before them.

Read more:

Oscar 'upgraded' to murderer

How a murderer's mind works

Silent protest against gender-based violence to be held in Pietermaritzburg


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