- - Saturday, April 12, 2014

Oscar Pistorious, the South African Paralympic runner accused of murdering his girlfriend, Reeva Steenkamp, faces a second charge of “culpable homicide” under South African law even if he is acquitted of murder.

Pistorious currently faces a possible mandatory life sentence for premeditated, deliberate murder — up to 25 years unless there are extraordinary circumstances — for killing Steenkamp. He has asserted that the killing was done mistakenly in self-defense because he erroneously believed an intruder was in his home when he fired four shots through a locked bathroom door.

Self-defense is an “affirmative defense,” or what in South Africa is called a “ground of justification,” which means that the defendant admits to the act of killing but not the crime of murder because he or she lacked the required intent.

Using an affirmative defense can be a risky move because the defendant must actually admit to the act. However, at the same time, it does eliminate the need for the defendant to explain incriminating evidence that usually places him or her at the scene of the crime.


In U.S. criminal cases, a defendant pleads not guilty and asserts self-defense. The prosecution would still retain the burden of proof to prove the defendant’s guilt beyond a reasonable doubt, but the “burden of production” would shift to the defendant to prove by a preponderance of the evidence that he or she had a “reasonable belief” his or her life was in danger.

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This commonly requires that the defendant prove the alleged victim threatened them, creating the appearance that “the victim is being put on trial.” That is not the case in the Pistorious trial since the issue is the defendant’s mistaken belief an intruder invaded his home.

In South Africa, juries were abolished along with the apartheid system. As a result, Pistorious faces the challenge of convincing an experienced judge that he made an honest mistake in believing that he was firing at an intruder.

But even if Pistorious passes the subjective test of convincing the judge that his mistake was honest — that he personally believed he was firing at an intruder — and he is acquitted of murder, the Paralympic star must overcome a higher burden, the objective test of convincing the judge that his mistake was reasonable — one that an ordinary person would also make.

If Pistorious fails to prove that his mistake was reasonable, he faces a possible “culpable homicide,” conviction, which is the equivalent of manslaughter under U.S. law.

Jeffrey Scott Shapiro is a legal analyst for The Washington Times.