On Tuesday the 20th May 2014, in the North Gauteng High Court, Judge Thokozile Masipa made an order detailing the referral of Oscar Pistorius, for evaluation, at the Weskoppies Psychiatric Hospital in Pretoria. He was referred, controversially , as an outpatient for a period of not exceeding 30 days. Pistorius was ordered to report at the Weskoppies on the 26th May 2014, when the evaluation will commence. Judge Masipa stated that Pistorius should report at the hospital on weekdays, attending between 9am and 4pm unless otherwise directed by the superintendent of the hospital.
Furthermore the order detailed the appointment of the panel who will evaluate the former athlete. The panel includes three psychiatrists, Dr. Leslie Fine for the defense, Prof H. W. Pretorius for the Court and possibly the Facility Superintendent, as well as a clinical psychologist, Prof J Scholtz as requested by the defense. The probable reason for the inclusion of the psychologist, which is not unusual, would be that they approach assessments from a divergent viewpoints. The psychologist would likely conduct formal psychometric testing which is not done by psychiatrists and this information would be taken into account as collateral evidence. Also the psychologist brings more contextual factors into play, highlighting more than just the psychiatric diagnosis like GAD, they highlight the context of the persons behaviour explained against their background and personality.
The panel has been tasked with determining Pistorius criminal capacity at the time that he killed Reeva Steenkamp. This means that they need to determine if Oscar Pistorius could determine right from wrong and furthermore if at the time that he killed Steenkamp he was capable of acting in accordance with his understanding thereof. This means assessing whether there were any psychological factors, disorders or illnesses that would have affected his ability to control or mediate his actions that evening.
A report must be handed to the registrar of the court, as well as to, the prosecution team and the defense team for consideration on completion. Court will resume on the 30th June 2014 where the findings of the panel will be heard and made public.
This precedent setting order for referral as an outpatient, has the public outraged and social media abuzz with questions regarding the perceived preferential treatment of Oscar Pistorius and the application of “rich man’s justice”. Without a doubt concessions have been made, but, with the precedent set the new legislation will be readily available for use by the poor man to in both present and future cases.
A NEW PRECEDENT
Upon making this order Judge Masipa effectively created a new precedent in South African law, which will directly impact on the common law with reference to the referral of accused persons for evaluation. The law is not as one would suspect rigid or stagnant. In both South Africa and Botswana the law is developed through the orders and judgements of the Higher Courts. High courts are specifically tasked with the development of the law through court orders in precedent setting cases. Certain crimes of ancient years are no longer considered criminal in modern society. An example of this would be the decriminalisation of homosexuality, prostitution and the possession of certain narcotics like Marijuana in many countries today! Conversely crimes like marital rape have been included as offenses as the needs of societies evolve.
The procedures for the referral for evaluation of an accused person are clearly set out in the South African Criminal Procedure Act or 1977. This Act details that an accused person referred for involuntary observation by the courts, should be taken into the custody of the facility nominated to evaluate them and remain in such custody until the evaluation is completed as ordered and the trial either resumes or is halted as dictated by the findings of the panel and the court. The fact that Pistorius has been referred by the court as an outpatient, opens up the doors for other accused persons in similar circumstances to approach the courts for the same relief. On the positive side the long waiting lists for a bed and the convening of a panel for evaluation purposes might be alleviated, speeding up the process and allowing the accused to remain free pending the completion of the evaluation. On the negative side, dangerous, highly unstable offenders with questionable mental disorders and illnesses may be left in society, free to continue their criminal behaviour for possibly lengthy periods awaiting assessment. Personally I am concerned by the application of this precedent with reference to inexperienced magistrates operating in the District and Regional Courts. Who would be responsible if an offender referred under these new conditions either killed himself of someone else?
PUNISH HIM TWICE?
I was intrigued by Judge Masipa’s words when the defense first raised the possibility of an outpatient referral. Masipa expressed that it would be favourable to have him assessed as an outpatient if possible, as the aim of referring Oscar Pistorius for mental observation was not to punish him “twice”. There are a few ways one could interpret this. It would seem that Judge may view, referral is a punishment. I fail to see why the assessment and counselling Pistorius would receive during the evaluation process would be seen as punishment, when it could be beneficial to him. Perhaps it was the curtailing of his freedom Judge Masipa was referring too? What is the first punishment I ask? The fact that Pistorius is having to face a trial for killing Steenkamp. The fact that is a gruelling process and he is physically ill when confronted by end result of his acts. Could she be alluding to the fact that at the end of the trial there might be a more severe punishment to come? Either way it was an interesting comment.
THE ASSESSMENT
The assessment usually involves the panel conducting lengthy interviews to obtain the Accused’s full life history, his family background, and his criminal and psychiatric history. On the diagnosing of any significant mental disorder or illness, they will need to establish the severity thereof as well as exactly how this disorder impacted on his ability to function rationally at the instant he pulled the trigger. Other assessments should include neuropsychological tests, personality tests, tests for malingering or faking a mental illness and general cognitive tests that evaluate cognitive process from intelligence to memory.
They will also need to determine which of these factors were merely contributory factors and which were direct causes or triggers of the events that unfolded on the morning he shot Steenkamp.
Concerned practitioners have already begun to point out serious problems with regard to the outpatient assessment of dangerous and violent offenders.
Leonard Carr a well known psychologist pointed out that when psychologists observe people, they do so on a comparative basis, “so the point of observation is that you are observing them compared to other people in the same setting. Now you have an outpatient here is someone who is, in a sense, a unique case. They are going to react differently to the context, to people who are living in. So I am curious about the effect that will have on the assessment.” There is simply no benchmark in this case.
The panel would have limited time for the observation of the Pistorius, with him being assessed on a part time basis from 9 to 4. Most people work longer hours than this. In fact the court has been so accommodating that he won’t even have to battle city traffic on his daily journey to the hospital and home. I have been asked how difficult it would be for Pistorius to simply put on an act for a few hours a day during the assessment, knowing he was going home to a warm meal and a very comfortable bed at night. Many of us do this every day during work hours as we conform to behaviours expected of us by employers with no real difficulty.
In my opinion it is important to be able to assess offenders out of their comfort zone. Being held in a Psychiatric Facility is in itself stressful and creates its own set of challenges. How the offender deals with these challenges is indeed a valuable indicator of their ability to adapt to challenging situations. The psychiatric staff working in these facilities are trained to assess offenders 24/7 when for instance they would not be working with the assigned panel of experts. Sleep patterns, eating disorders and other behavioural idiosyncrasies are often picked up by these staff members because the referred person is under constant watch as an inpatient. Group interactions are also monitored, for example, at meal times where general social functioning is assessed.
Another issue of concern is the fact that with Pistorius going home every afternoon, there is nothing to stop him from hiring an army of psychologists to work with him every evening, coaching him and advising him all through the evaluation process. Perhaps even walking him through the personality tests? I received information from a source living inside of a Pecanwood Golf Estate, where Pistorius has been spending time, that they observed Pistorius legal team coming and going, at all hours, while he was under cross examination and not supposed to be taking legal advice. Perhaps they had simply popped in for tea?
Pistorius has been diagnosed as having Generalised Anxiety Disorder by Dr Vorster a Psychiatrist who testified for the defense and whose testimony gave rise to Nel’s application for Pistorius’ referral. This disorder in my opinion would likely heightened during the night when Pistorius feels alone and vulnerable. As an outpatient it is not likely that he will be monitored during the night, the very time when he claims to have been so anxious he killed his model girlfriend because of his erroneous belief that he was being attacked by an unseen assailant hiding behind his toilet door. A number of other incidents Pistorius described in his testimony, where he had told the court of inappropriate and aggressive reactions also occurred at night, for instance when he heard a noise, grabbed his gun and hunted down his washing machine and when he exited his vehicle, grabbed his gun and pointed it at persons he thought were following him home for whatever reason.
Dr. Voster, it must be stated, based her evaluation of Pistorius and the events that transpired on the 14th of February 2013, on, and only on, Pistorius version of the events. She stated in court that she did not consider the States version of events and made no attempt to attain these facts from the prosecution team. My question here is: What version of Pistorius’ version of events did he present to Dr Vorster, as he put many versions of his version before the court when he testified?
THE POSSIBLE OUTCOME
What Dr. Vorsters testimony did, was open the door for a mental incompetency plea which if successful would result in a not guilty verdict. Even though the defense team, at this point, hasn’t made this assertion. The problem faced by the court, is that the only way to deal with this, is to order a full assessment which has now been addressed and can go either way in the end. A full evaluation of Pistorius, could actually, potentially close all the doors for future psychological defenses in this case, rather than opening up a door for one.
At the end of the day Dr Vorster only focussed her report on one aspect namely the GAD. When you make a diagnosis you look at personality, you should look at the different Axis of the diagnostic manual. Now that Pistorius has been referred a comprehensive diagnosis will be made by the panel of experts If they find for example personality issues or issues about impulse and self control then it could seriously harm make Pistorius case. With the information gleaned from the evaluation, we should have insight into both the contributory factors and the direct causes, triggers or motives that resulted in Steenkamp’s death. We will also have a strong indication of the mitigating and aggravating factors that will be presented during the sentencing phase of the trial, should Pistoris be convicted of Steemkamp’s murder. Either way we may finally have some answers to the question the world is asking. WHY?
Criminologists, due to their extensive knowledge of the causes, explanation and prevention of crime, have an imperative role to play in the control of crime the commercial environment. To this end Attorney Tshepiso Lediretse and I have established a consulting firm – Expert Profiling contactable on Tel: 390 9957 which is ideally placed to assist.
