Friday 13 December 2019

Another tragic dance of death and the maiden

Justice may be blind, says Eilis O'Hanlon, but the death of Reeva Steenkamp shows that it can be heartless too

Oscar Pistorius leaves on bail from the North Gauteng High Court
Oscar Pistorius leaves on bail from the North Gauteng High Court
Olympic and Paralympic track star Oscar Pistorius reacts as Judge Thokozile Masipa delivers her verdict at the North Gauteng High Court in Pretoria.
Oscar Pistorius and Reeva Steenkamp
Henke Pistorius and Aimee Pistorius, the father and sister of Oscar Pistorius, embrace after the reading of the verdict by Judge Thokozila Masipa (unseen) at the North Gauteng High Court in Pretoria September 12, 2014.
June (L) and Barry Steenkamp, parents of Reeva Steenkamp listen to the judgement of Olympic and Paralympic track star Oscar Pistorius at the North Gauteng High Court in Pretoria. REUTERS/Phill Magakoe
Family members of Reeva Steenkamp react as they listen to the verdict of Olympic and Paralympic track star Oscar Pistorius, at the High Court in Pretoria. REUTERS/Siphiwe Sibeko

Eilis O'Hanlon

The facts of the case were clear enough. Some time shortly after 3am on the night of Valentine's Day last year, Oscar Pistorius, the acclaimed Paralympic athlete known to fans worldwide by the nickname Blade Runner, fired four shots through a locked toilet door at his home on the high security Silver Woods estate in Pretoria, South Africa.

His model girlfriend, Reeva Steenkamp, who was on the other side of the door, was shot three times and died of multiple gunshot wounds.

Pistorius's story was that he mistook Reeva for an intruder and believed his own life, and hers, was in danger.

The televised trial began earlier this year in March, and concluded with closing arguments in August. Last Thursday, Judge Thokozile Masipa began delivering her verdict, surprising many legal experts who considered a murder conviction in some form inevitable by quickly making it clear that she accepted the sequence of events put forward by Pistorius that he did indeed have no "direct intention and premeditation to kill the deceased".

Masipa also found that Pistorius had been "consistent" when claiming to believe Reeva was in the bedroom at the time, and, furthermore, that it was "highly improbable the accused would have made this up so quickly" if he had just knowingly shot her.

The prosecution case, she went on to say, was "purely circumstantial" because it relied on ascertaining Pistorius's state of mind and "the accused is the only person who can say what his state of mind was at the time he fired the shots".

She brusquely dismissed any suggestion that a so-called "exaggerated startle response" was to blame for his firing of the gun. Instead she accepted that he made a conscious decision to arm himself and go to the bathroom, rather than seeking assistance. The question, therefore, was whether a "reasonable" person would have acted in the same way.

Masipa's judgement was that Pistorius acted "too hastily and used excessive force", and that a reasonable person would not have fired four shots into the toilet cubicle, and on Friday returned to court to accordingly find him guilty of "culpable homicide" as well as one firearms charge.

Basically, the verdict amounted to this: the state did not prove Pistorius knew Reeva was behind the door, much less that he intended to kill her, so he could not be guilty of "premeditated murder". Pistorius also did not foresee that his actions could result in death, so he was not guilty of murder by what is known as 'dolus eventualis'. On the other hand, he should have foreseen it, and was therefore guilty of a charge equivalent in Irish law to manslaughter.

Lawyers can now present mitigating or aggravating circumstances before Pistorius returns in October for sentencing. He could face up to 15 years behind bars. Alternatively he could get a suspended sentence.

In the meantime, South African legal experts remain divided on whether the judge misinterpreted the rule of 'dolus eventualis', placing too much emphasis on whether it was Reeva behind the door. This may form the basis of an appeal and possible retrial.

It's fair to say, however, that the main controversy outside the courtroom rested on the fact that Pistorius was cleared of having deliberately shot Reeva Steenkamp. Many wanted to see this as another example of a legal system which does not take violence against women seriously. That there was a female judge only slightly dimmed their enthusiasm for this narrative.

That concern was not unfounded. It would be interesting, for example, to see the reaction if a male judge had placed such an emphasis on Pistorius's late mother's paranoia about crime in explaining her son's subsequent behaviour. Sheila Pistorius, who died when Oscar was 15, may have slept with a gun under her pillow, but she's hardly responsible for her son's behaviour a decade later. This was no place for perpetuating cod-psychological stereotypes reinforcing the notion that a mother's place is in the wrong.

Similarly, what would be said about a male judge who was as dismissive as Masipa of the Whatsapp messages from Reeva which revealed a woman often in fear of her boyfriend? "I'm scared of you sometimes and how you snap at me and of how you will react to me," is what she wrote.

When these were read out during the trial, Masipa interjected: "Aren't relationships dynamic? If you're unhappy today, it doesn't mean you won't be happy the next day." Prosecutor Gerrie Nel retorted that "this was not a normal relationship. This relationship ended in death." Still in her judgement, Masipa declared: "In my view, none of this evidence, from the state or defence, proves anything." Except, of course, that Reeva was terrified of a man who subsequently killed her.

But perhaps that is the real problem with the legal system. Not an ingrained misogyny, but rather an over-concentration on technicalities and procedure. That the law is all head and no heart may be inevitable if justice is to be objectively done, but does that mean it must be so inimical to common sense and instinct?

Pistorius's story didn't add up - and indeed, the judge acknowledged that the athlete was an "evasive witness". She still gave him the benefit of the doubt, laying all responsibility for proving his intentions at the time of the shooting on the shoulders of prosecutors, whilst simultaneously declaring his state of mind to be knowable only to himself.

Which is, of course, metaphysically true, insofar as that means anything. But surely the role of courts is to make judgements about a defendant's state of mind anyway? There are no juries in South Africa, which is both a good and bad thing. Juries can be swayed by prejudice or emotion, but can also see through the legalese to the human being on the other side of the toilet door, who was Reeva, not just the "deceased".

Unless there is a retrial, it's all irrelevant now; but it's hard for a layperson to see why it's delving "into the realms of speculation" to ask why Reeva had her phone with her that night if she really had just got up from bed to visit the toilet, but apparently acceptable to dismiss the idea Pistorius only pretended to believe there was an intruder by asserting, as Masipa did, that this was an unlikely thing to do. Who says? On the contrary, is it not exactly what a man would do in these circumstances? And having invented the story, he'd hardly deviate from it.

Similarly, why is it considered legally proper to assert that a "reasonable" man should have called security, but not to ask why a "reasonable" man who says he heard noises in the bathroom did not first check to see if it was his girlfriend, which was always the most likely scenario?

Or indeed to wonder why, if he really did shout at this non-existent intruder before opening fire, as he claimed, his girlfriend did not reply that it was actually her? Or to ask how credible it is that an intelligent man could possibly not know that firing four shots into a tiny toilet would kill anyone inside at the time?

It's all equally speculative, but some forms of speculation seem to be more equal than others. The tragedy is that it's those who pull the trigger who often win rather than those on the wrong end of the bullets.

Sunday Independent

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