For double-amputee athlete Pistorius, who was convicted Friday of “culpable homicide” but found not guilty of murder, transcending disability was his trademark, his claim to fame, fortune and the attention of beautiful women such as model Reeva Steenkamp.
But for Pistorius the defendant, disability was something else: an excuse. His lawyers constructed a narrative that could explain why he wasn’t negligent — at the very least — when he heard a noise coming from his bathroom and, instead of calling police or security guards in his gated community or yelling out an open window, he grabbed his 9mm pistol, walked on his stumps 16 feet across the room and fired four bullets into the bathroom door of his Pretoria home, killing Steenkamp.
“Calling security or calling for help from the balcony probably would have taken as much time as it would have taken for him to go to the bathroom and discharge the four shots,” Judge Thokozile Masipa said Thursday, shortly after saying she could not find him guilty of murder, but perhaps of negligence. Why didn’t he just seek help?
The answers to that question were critical to the outcome of the trial. And the ones provided by Pistorius and his lawyers came more clearly into focus as the judge recounted them — and they all were excuses, all tied to disabilities of one form or the other, or disadvantage. The most obvious was Pistorius’s lack of legs, which made him feel helpless that night without his prosthetics. But others were his family circumstances — their anxiety, and his, about crime in South Africa. His lawyers even argued that anxiety stemming from his disability was responsible for his erratic testimony in the trial.
Far from mastering his disability, a defense psychiatrist suggested, the disability came to master him. The initial surgery to remove his legs when he was 11 months old was a “traumatic assault” that left him with an “anxiety disorder.” Pressure growing up to pretend the disability was not crippling further scarred young Oscar.
As an adult, his lawyer Barry Roux told the court, his disability produced a “slow burn effect…. The evidence is clear that the effect of disability, vulnerability and anxiety could be triggered at any time, even after a relaxing evening” with his girlfriend.
And then there was his mother’s fear of crime. His father, the psychiatrist told the court, left the family when Pistorius was young. His mother developed such a fear of intruders she kept a gun under her bed. This made an indelible impression on Pistorius, who also kept a gun under his bed.
Pistorius’s defense tactic has not gone unnoticed by people who are disabled — and many don’t like it.
“As a disabled person myself, I’m still insulted by how Roux, presumably on instruction from Pistorius, continues to make absurd claims about how he suffered incessantly due to his handicap, causing weird and massive damage to his mental capacities,” wrote Michael Simpson in Health24. “Strange that Oscar used to fight for the right of the disabled to be treated on absolutely equal terms to the able-bodied. This must have been some kind of sham, because now his lawyer is insisting that this was never so, that Oscar has been deeply and permanently scarred by his handicap, and absolutely must not be treated as an equal, but as a profoundly and eternally impaired person.”
But of course it’s a legal defense by a man potentially facing prison. All of this was intended to explain why he fired at the door instead of doing something else, and why he was not negligent in doing so — and therefore guilty of “culpable” homicide, the equivalent of manslaughter.
The test of that — whether a “reasonable” person in similar circumstances would behave as Pistorius did — is subjective. A judge in South Africa’s legal system must inevitably engage in supposition. And while trying to do so objectively, supposition inevitably summons up not just law, but personal experience.
The problem perhaps for Pistorius is this particular judge knows something about being disadvantaged. And she knows something about crime-ridden neighborhoods.
Oscar Pistorius sentenced to six years in killing of girlfriend
Masipa, 66, grew up poor and black in the South African township of Soweto under apartheid. She was one of 10 children. Five died in childhood. One was stabbed to death at the age of 2o.
Masipa was jailed for participating in an anti-government protest during apartheid. She worked delivering cups of tea to get through school and was a crime reporter before becoming only the second black woman on the bench in South Africa.
As Pistorius, who is from a comfortable family and is now wealthy, sobbed and vomited his way through his trial — and as he and his lawyers described his deeply unfortunate circumstances — she sat calmly taking notes, her face giving no hint of what she was thinking.
On Thursday, the world found out. Neither disability nor disavantage is a defense, she said. The “defense says the accused’s disability made him feel vulnerable, which contributed to him arming himself with a firearm,” she said. “Many people in South Africa have been victims of violent crime, but they have not resorted to sleeping with firearms under their pillows.” Many people have disabilities too, she said, and they don’t cower in fear about crime and sleep with guns.
“If the accused had awoken in the middle of the night and in darkness saw a silhouette hovering next to his bed, and had in a panic shot at that figure, only to find it was the deceased, his conduct would have been understandable and perhaps excusable,” she said. “In such a case, he would not have been expected to call security first, as he would have been faced with a real emergency.”
In this case, however, Pistorius “had enough time to assess the situation and call for help.” She was not convinced, she said, that a “reasonable person” with “the accused’s disability” would have fired “four shots into the cubicle…. The accused knew that there was a person behind the toilet door. He chose to use a firearm which was a lethal weapon. He was competent in the use of firearms as he had undergone some training,” the judge said.
“Did the accused fail to take the steps which he should reasonably have taken to guard against the consequence? Yes,” said Masipa. “In the circumstances, it is clear that his conduct was negligent.”
Friday, she acquitted Pistorius of murder, saying the government had not proven that he intended to kill her, but convicted him of “culpable” homicide, killing Steenkamp untentionally.