By Nokuthula Ndlovu
Legal psychology is a field of study that explores the intersection of psychology and the law. It applies psychological principles and research to diverse legal issues, including gender-based violence (GBV). GBV encompasses any form of violence directed at someone due to their gender. It continues to be a pervasive issue in societies worldwide, causing immense suffering and significant social, psychological, and legal repercussions. It is crucial to explore the nexus between legal psychology and the battle against GBV. GBV encompasses a broad range of actions, such as domestic violence or sexual assault. Legal psychology plays a pivotal role in understanding the complexity of these crimes, studying the motivations, psychological impact, and patterns associated with perpetrators and survivors.
Psychologists contribute to legal matters of GBV through scientific based evidence that speaks to the behaviour of survivors. The scientific evidence contributed by psychologists goes beyond reporting on mental stability and providing a testimonial. Cognitive psychologists research eyewitness memory or perceptual issues involving crime for example. Their value in GBV matters is providing scientific understanding and possibly explaining the behaviour of a survivor.
Legal psychologists act as expert witnesses in court and disciplinary hearings, offering insights and expert opinions on the psychological factors relevant to GBV cases. They educate on psychological consequences of abuse, trauma responses, or the assessment of the risk of reoffending. They bring out the intersectionality of GBV with other forms of discrimination and/or criminal behaviour, such as racism, ableism, or homophobia.
Engaging gender-based knowledge without such an understanding prejudice the survivor. Trauma based evidence requires trauma-based knowledge. For decades South African courts and disciplinary hearings have entertained the idea of an imperfect witness and more often than not issued a not guilty verdict based on the inconsistent imperfect testimony of the survivor. Thankfully, with the growing intolerance against GBV in the country, the attitude in courts and disciplinary proceedings are shifting. In the Notsi v S (FB) (unreported case no A112/2021, 13-5-2022) (Daniso J) appeal it was highlighted that contradictions are insignificant and further to be expected from a truthful but imperfect memory (see also S v Tshabalala and Another 2020 (5) SA 1 (CC) (sexual violence as a method of asserting control and reasserting masculinity); NH v S (GJ) (unreported case no A128/2022, 21-11-2022) (Oosthuizen-Senekal AJ) (psychological impacts as consequences of rape)). Psychological understanding teaches legal officers that in GBV matters, a survivor cannot be burdened with being a perfect witness in terms of memory and sequence.
There are psychological dynamics that contribute to GBV, such as power imbalances, control, aggression, and the impact of social norms and gender roles on the occurrence and perpetration of violence. The connection between the law and psychology is not just about understanding the survivor but also the perpetrator. Legal psychology as an investigative technique contributes to the development and refinement of fact-finding techniques in cases of GBV. This includes techniques for interviewing victims and witnesses, detecting deception, and understanding the effects of trauma that may impact testimonies.
Looking at a witness solely through a legal lens can limit our understanding of the trauma they have endured. It reduces their experiences to mere facts and disregards the emotional and psychological impact that violence leaves behind. By disregarding this crucial element, we risk overlooking vital aspects of their testimony and depriving them of a more holistic form of justice.
Embracing psychology alongside legal standards and framework provides an opportunity to delve into the psychological implications of GBV. It empowers an appreciation of trauma, the range of coping mechanisms, and the long-lasting effects on an individual’s mental well-being. It makes room for courts and disciplinary hearing processes, to decipher the intricacies of their memory, potential triggers, and the emotional complexities that may influence their ability to communicate fully, alternatively provide testimony for their experiences.
Understanding the psychological aspects also helps break through the barriers of stigma and witness blaming, that often surround GBV cases. It allows us to recognise the multitude of factors that can impact a survivor’s response, such as fear, shame, or even dissociation. By acknowledging and addressing these psychological dynamics, we create a safe space for victims to come forward, trust the legal system, and share their truth in its entirety.
Legal standards and the admissibility of evidence are based on rules and principles established to promote fairness, protect individual rights, and maintain the integrity of the judicial process. Relevance, authenticity, privilege, and hearsay are factors typically considered when determining evidence. Prejudice, legal and constitutional protections and also expert testimony are factors to be considered in evidence that emphasise the connection between psychology and the law.
Conflict may arise where it is perceived that the psychological angle is inclined towards the survivor and likely to excuse a poor and sometimes hostile witness on grounds of psychological impact. However, integrating psychological understanding in the approach to GBV matters honour the complexity of the human experience, whether such experience is that of the survivor or the perpetrator. True justice encompasses not only legal accountability but also empathy, compassion, and healing. The journey towards a promising future requires dismantling the barriers that separate legal and psychological perspectives, supporting survivors in their pursuit of justice and fostering a society free from GBV.
Human rights are for the benefit of the survivor and the perpetrator. The perpetrator unwittingly or otherwise limits their freedoms as a consequence, but can also expect to be rehabilitated, albeit appropriately and commensurate to the damage caused by their behaviour. Recognising the underlying psychological factors that perpetuate cycles of violence, makes room for the development of effective intervention strategies. This approach moves beyond punishment alone, towards a comprehensive understanding and addressing of root causes, increasing the chances of transforming conflict into harmony.
Activists who primarily fight for women’s rights play a crucial role in spotlighting the experiences and stories of survivors, which helps to shed light on the magnitude and impact of GBV. However, care should be taken particularly for the purpose of challenging stereotypes and myths. Taking an exclusively activist approach can alienate certain audiences or discourage open dialogue, leading to a lack of understanding or support for the cause.
GBV impacts individuals from all backgrounds and across diverse identities. It is important that conversations around GBV address and dismantle the structures that perpetuate violence, while promoting inclusivity, empathy, and justice for all survivors. Anyone can experience GBV, regardless of gender, age, or socio-economic background. Over-representation and tokenism occur when focus is solely on certain survivors or narratives are overemphasised while other marginalised groups are overlooked. This can reinforce biases and stereotypes, neglecting the experiences of individuals from different backgrounds, sexual orientations, and gender identities. A multi-faceted approach that combines activism with education, outreach, and collaboration is what will foster empathy, understanding, and ultimately create the necessary societal shifts for lasting change.
Legal psychology plays a role in developing evidence-based prevention programmes and interventions aimed at reducing GBV. It helps identify risk factors, evaluates the effectiveness of preventative measures, and aid in the design of support services for victims and perpetrators. Overall, legal psychology helps inform policies, legal approaches, and interventions related to GBV by providing research-based insights into the psychological aspects involved. For example, records of GBV incidents at the University of Fort Hare in the Eastern Cape reveal that many perpetrators of GBV possess similar psychological characteristics (University of Fort Hare, Student Disciplinary Finalised Cases Register 2015 – 2024). These characteristics include a distorted perception of entitlement, aggression, and a presence of deep-seated patriarchal beliefs. Armed with this knowledge, legal psychologists can devise targeted intervention programmes and rehabilitation strategies.
Legal psychology aims to improve legal processes, increase understanding, and ultimately mitigate the occurrence and impact of GBV. Legal psychology promotes social change on a professional level by requiring ongoing learning towards best practices and evolving social contexts. This commitment to growth ensures that legal practitioners effectively contribute to the advancement of justice and the protection of human rights which is the goal of the legal fraternity.
Nokuthula Ndlovu LLB MA (Human Rights) (UFH) is a Legal Advisor at the University of Fort Hare.
This article was first published in De Rebus in 2024 (August) DR 30.
