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I believe that Judge Thokozile Masipa was right to acquit Oscar Pistorius of murder.
Some may find that view difficult to understand. And I get that. Reeva Steenkamp was a young woman in her prime when her life was tragically and prematurely ended. In anyone’s book, that’s heartbreaking. For those who loved her most, infinitely so.
To a point, I also understand why some find it difficult to see beyond the outcome of Oscar’s actions on that fateful night. At least, those that view this tragedy with naivety. A man, a gun, and a young woman lying dead; a seemingly unambiguous image when crudely framed in black and white.
Except it’s not. Black and white that is. We don’t live in a monochrome world. Ours is a convoluted world, full of complex societies and multifaceted lives tinted in infinite shades of colour. Our perspectives are unique, balancing on a spectrum with extremes at both ends, and a vast intricate range in between, every one influenced by individual experience and human conditioning.
Sitting resolutely at one end of the spectrum, are those convinced that Oscar is guilty of murder. They see a world class athlete; ego inflated by fame and hero worship, narcissistic and out of control. From their perspective, this was a man as able as any other, with a penchant for guns, who one fateful night driven by rage or paranoia, got trigger happy and shot through a closed door, coldly reconciled to the certain death of the person inside.
Sharing a bench at the opposite end of the spectrum, are those like me, who believe that Oscar is innocent. We see a man; ultimately human, imperfect, inspirational, a humanitarian given to acts of great kindness. At the heart of our conviction is a bilateral amputee, lower legs severed before he could totter into his first birthday, conditioned by environment, culture, and a lifetime of living with disability. From our perspective, this was a fearful young man, vulnerable without prosthetics, reliant upon weapons to feel safe within his own home, and who in a catastrophic moment fused by instinct and fear, shot through a closed door believing that he was about to be confronted by an intruder.
I make no apology for the place I occupy on this spectrum, nor do I apologise for feeling nothing but compassion and empathy for a man who had no motive to kill the woman he loved and no history of ever harming another. Like everyone else, my perspective is unique, influenced by my own experiences and conditioning. Not least of all from having experienced life with a bilateral amputee.
Bilateral amputation is a serious disability. No-one with a modicum of intelligence would try to argue otherwise. The physical limitations are obvious. Even amputees who confidently negotiate prostheses, are forced to revert to the reduced mobility afforded by stumps, when their prosthetics are removed. However, whilst the physical effects may be evident, the more complex emotional and psychological effects are less so.
I fear that few who dare to judge have thoroughly thought this through. However, in the State vs Oscar Pistorius, the National Prosecuting Authority had an obligation to do so. Indeed, theirs was a legal and constitutional duty, necessary to ensure that criminal and judicial proceedings were free from discrimination, to protect a disabled person’s right to equality under the law. Yet the State was, and still is, insistent that Oscar is guilty of murder. A claim founded on the premise that he made a clear and deliberate choice to shoot to kill.
On the 14th February 2013, Oscar was a man at the pinnacle of a glittering career. Engaged for many years in humanitarian works, he was about to launch his own charity foundation. A committed Christian, from a close and loving family, he now found himself in the throes of a new and exhilarating romance with a beautiful, intelligent woman. Yet despite having no history of, or propensity to commit violence, and despite the absence of motive (with the notable exception of self defence), the State claims that during the few short minutes between picking up the gun and firing the shots, he made a calculated decision to take the life of another human being.
Oscar’s version tells a different story. His affidavit reveals a disabled man on his stumps, vulnerable and in the dark; gripped with fear and what can only be described as an instinctive and desperate attempt to protect himself and the woman he loved from untold horrors, all too prevalent in a country beset by brutal crime. Far from being a calculated decision, Oscar fired the shots whilst momentarily overwhelmed with fear and panic. With devastating consequences.
Within two days, the State showed its hand. The NPA was bent on pursuing a premeditated murder conviction, regardless of the lack of reliable evidence. Did the NPA ever give any consideration to Oscar’s version of events? Did they even think about the role his disability might have played in this tragic scenario? And, just how seriously did they take his legal and constitutional rights?
Very little it seems, given the almost immediate and unjustified charge of premeditated murder. Even though it is well known that some people, by conditioning, are wired to experience a higher level of fear than most. Conditioning that would not be exceptional for someone living with a lifetime of disability. In such cases, even a minor stimulus can generate an extreme fear reaction, and emotions that overwhelm reason and rationality.
Disability is a characteristic specifically protected by law. And for good reason. However, there was no question of the State exploring the possibility that physical, emotional or psychological vulnerability was a viable element of Oscar’s defence. A frightening reality in the light of Oscar’s constitutional rights; to be free from discrimination and for equality under the law. Even more disturbing given the State Prosecutor’s explicit professional obligation to safeguard the rights of the accused.
In the light of the unfolding case of the State vs Oscar Pistorius, one might have been excused for wondering whether these human rights were invalidated just by being accused of such a serious crime. But of course not. For only by having the significance of his disability recognised in his defence, could Oscar have enjoyed legal capacity on an equal basis with others. Indeed, this is the very crux of discrimination law.
Fight or flight. Conditioning. The startle response. All relevant points raised during the trial, in Oscar’s defence. All summarily dismissed by the State Prosecutor, Gerrie Nel, along with key findings of the panel of expert psychologists, a report that he had insisted upon.
This report informed the court about the effects of early amputation; the physical and psychological trauma, and the resulting ‘blueprint of mistrust, insecurity and being unsafe’. The report also informed the court about the on-going psychological effects experienced by Oscar, such as agoraphobia and social phobia, but with no evidence of narcissism or behaviour usually associated with men in abusive relationships. This report informed the court that he had a history of feeling insecure and vulnerable, especially when he was without his prostheses. It confirmed the exposure to crime throughout his life, and the resulting nervousness and anxiety about safety measures, especially in his home and when he was in South Africa. And the report described the effects of feeling threatened in the context of Oscar’s disability:
“A reaction to a threatening situation comprises more than ‘flight or fight’, an appraisal takes place instantly whereby the individual assesses firstly the intensity of the threat and then his position to cope with the threat. These appraisals are influenced, amongst other things, by experience. When Mr. Pistorius’ appraisal of a situation is that he might be physically threatened a fear response follows that might seem extraordinary when viewed from the perspective of an able-bodied person, but normal within the context of a disabled person with his history.”
Anyone committed to doing some research before even daring to judge another, would know that there is a strong correlation between physical and social vulnerability and fear of crime. Experiencing fear now and then is a normal part of life, but living with chronic fear is an intense and crippling reality for some. Particularly those living with disability, who are at greater risk of physical and sexual violence. As a disabled man, with an exceptionally high profile, living with fear was Oscar’s reality.
The State Prosecutor had a legal duty to consider this aspect of Oscar’s defence. He failed in that duty. Big time. Not only did he fail to do so during the prosecution, he failed to do so during arguments for sentencing. Indefensibly, he sought to persuade the court that Oscar’s disability should not be considered in mitigation: “If he has prosthetic legs, he can walk; why should he be treated differently from other accused?” Had Judge Masipa have accepted this discriminatory argument, the outcome would undoubtedly have been to have put a bilateral amputee at serious risk of harm.
Throughout the proceedings, Gerrie Nel also insisted on comparing Oscar’s efforts to be treated equally in the field of athletics, with his efforts to have the significance of his disability recognised in his defence: “He fought to race alongside able-bodied sprinters…it’s shameless that he now uses his disability as an excuse”. An approach that was both immoral and unconstitutional.
Ultimately, Judge Masipa found Oscar’s actions to be criminally reckless, but not intentional. In assessing culpability, she too afforded equal weight to Oscar’s focus on his abilities and athletic success. But in doing so, she failed to consider the incident in its real context. For on the night of the 14th February 2013, Oscar was not an elite athlete, in the safe and familiar surroundings of a buzzing stadium environment. He was not encompassed by friendly, cheering faces. And most significantly, he did not have the enhanced mobility or speed afforded by the wearing of prosthetics or carbon fibre running blades.
On the contrary, that night he was a young man, in his own home, in the dark and on his stumps. Devoid of prostheses, he was genuinely vulnerable (in real terms not imagined), afraid of criminal intent and solely responsible for protecting himself and Reeva under threat. In both judgment and sentencing, only by giving due weight to this reality could Oscar have been free from discrimination and have achieved equality under the law.
I have been disappointed by the unwillingness of others to understand the effects of disability upon this tragedy and shocked beyond words by the unconstitutional behaviour of the NPA. I am also deeply saddened by the lack of empathy and compassion shown towards a man who mistakenly took the life of the woman he loved.
Is it simply that society does not wish to acknowledge Oscar’s disability and inherent vulnerability? For in doing so they would have to concede that he is not guilty, thereby removing the very object which allows them to rail against society’s ills? Or is it simply that Oscar’s extraordinary athletic abilities, and his own desire to focus on his abilities rather than his disabilities, has all too successfully masked the vulnerable and disabled person buried within that able persona?
Whatever the reason, it can never be reasonable to assume that prowess as a sportsman, or possessing an outwardly positive mental attitude, could nullify the physical, emotional and psychological vulnerability arising from a life-time of serious disability. Particularly in a country with South Africa’s extreme violent crime rate. Nor could it ever be reasonable to discount the impact of environment and culture upon a disabled person. For it is these unique personal circumstances that inform the human experience, and shapes personal identity, including an inherent fear of crime and social vulnerability.
On the contrary, I would suggest that not only is it unreasonable, it is discriminatory, and a violation of the human rights instituted by a civilised society in order to protect its most vulnerable citizens.
I believe that on the 14th February 2013, Oscar Pistorius genuinely believed there was an intruder in his home. I believe that his exaggerated response to fear, the result of living with a lifetime of disability, conditioning, high profile and exposure to crime, caused him to respond in the only way he could. With flight not an option he was conditioned to face danger head on. And in one swift and catastrophic moment, panic and fear overwhelmed reason and rationality and he shot and accidentally killed Reeva Steenkamp, the woman he loved.
That catastrophic moment was to change the lives of so many people, none more devastatingly than Reeva’s family, his family and Oscar himself. I believe that the consequences of his mistake are punishment enough and that he deserves empathy, compassion and human-kindness, not judgment, retribution and incarceration.
I also believe that by failing to give due consideration to the effects of long-term disability, Oscar has been denied what should be his ‘inviolable’ human rights; to be free from discrimination and to be treated equally under the law. A cruel irony for a man who has done so much to raise the profile of equal rights for the disabled and disadvantaged across the world. And ultimately, a troubling development for the future of the disabled and vulnerable in South African society.
Heather Malcherczyk
