Oldal 156 [156]
OCR
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 +
