Oldal 156 [156]
MORDECHAI KREMNITZER — KHALID GHANAYIM
helpful to describe the battered woman as a hostage under torture.** The situation
of the battered woman reflects a close proximity to several modes of diminished
responsibility: the very difficult mental state in which the woman is being trapped
resembles a state of necessity as an excuse, since the expectation from her to
respect the life of the abuser is significantly reduced and therefore- diminished
her culpability. Moreover, the woman’s severe despair reduces significantly her
culpability. Serious and ongoing abuse shapes a provocation-like situation. The
death of an abusive husband prevents future abuse against the woman and her
children, hence the proximity to self-defense, which significantly reduces the
wrongfulness and the culpability. The combination of an extreme mental distress,
despair, existential fear and justified anger, against the background of the need
to escape both hell and the inevitable loss of life — reduces significantly both the
wrongdoing of the killing (of the abuser) and the culpability of the victim turned
into a killer. Following the abuse and suffering, even the deliberated decision to put
an end to her misery by killing the abuser cannot be considered as premeditated
and change the evaluation of her deed. Her act is like a drowning grip on a life-line
intended to prevent her next abuse, as the only way for her to save life or lives.
Premeditation is described as a rational process under conditions of autonomy.
It does not fit the situation and mental state of the battered woman. In any case,
the rational for regarding the case as aggravated is not applicable. The opposite is
true — it is an obvious case of reduced culpability.*°
Then, other cases are included in this category, carrying a maximum sentence
of 20 years: provocation, close to mental incapacity and little divergence from
conditions of defenses.
(b) Provocation
A central problem of the old law related to the function and characteristics of
provocation. It stemmed from the mixed nature of the Israeli law on homicide
(French-Ottoman and English). From the Ottoman Law, the aggravation of
premeditation was adopted, namely killing “in cold blood, without any provocation
immediately before the act, under circumstances in which he was able to think
and to understand the result of his actions”.*° On the face of it, it is sufficient that
the defendant acted in hot blood, caused by a provocation that brought about a
34 See also the Canadian Case of Lavallee v. The Queen, 55 C.C.C. 3d 97 (1990), [1990] 1 SCR
852, (1990) 76 C.R. (3d) 329 (S.C.C.).
% See Kremnitzer -— Ghanayim, Tötung des Haustyrannen: Minderschwere Tötung;
Ghanayim, The Reform of Homicide Offences.
3° "This was the legal definition of provocation in the former section 301 of the penal code,
influences by the Ottoman-French legislation. See also Crim.App. 125/50 Jacobowitz v.
A.G., 6 P.D. 514 (1952); Crim.App. 65/49 Khalil v. A.G., 4 P.D. 75 (1950).
+ 154 +