‘Psychological’ assault: The crime of assault revisited

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 1-23
• Citation: (2012) 25 SACJ 1
• Date: 16 August 2019
• Author: Charnelle van der Bijl

ARTICLES

‘Psychological’ assault:

The crime of assault revisited

CHARNELLE VAN DER BIJL*

ABSTRACT

Currently, threats of violence in the form of words have been interpreted as

constituting an assault where there is an inspired belief or ex pectation of

a fut ure physical attack. This article analyses Snyman’s revi sed def‌in ition

of assault with regard to the concept of ‘bodily integrity’ to establish

whether severe e motional abuse c ases, where the re is no expectat ion of

a fut ure at tack, ca n be brought within the ambit of the crime of assault.

An investigation ensues into the nature of s o-called ‘psychologica l assault’

and the meani ng of ‘bodily’ harm with reference to case law in the United

Kingdom. The premise of the article is therefore centred around whether an

interpretation of the term ‘bo dily integrit y’ could include emotion al verbal

abuse a s a form of assault, whe re there is no threat of a future physical

attack, as a direc t or indirect impai rment of bodily integr ity.

1. Introduction

Psychological injury in the context of assault has been the subject of

academic debate i n the United Kingdom (UK) for some time but it is

a topic which is relatively under-researched i n our system of cri minal

law. The whole notion of the adage ‘sticks and stones may break my

bones but words may never harm me’ does not q uite ri ng tr ue and

has recently been revisited under Engli sh law.1 Stannard raises the

possibility that there should be a cr ime of emotional ha rm and states

in this regard:2

* BLC, LLB, LLD (University of Pretoria), Professor in the Department of Criminal and

Procedural Law, University of South Africa (UNISA). I wish to extend my thanks to

the University of South Africa for the funding received in order to do this research at

the Max-Planck-Institut für ausländisches und internationales Strafrecht in Freiburg,

Germany.

1 JE Stannard ‘Sticks, stones and words: Emotional harm and the English criminal law’

(2010) 74 Journal of Criminal Law 533. Stannard advocates that the English law

should recognise a crime of emotional harm subject, however, to certain restrictions

(at 555).

2 Stannard op cit (n1) 534.

1

(2012) 25 SACJ 1

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‘… [I]f I give someone a slight push and it unexpectedly kills them, that is

manslaughter, but if I hound them to their death by a sustained course of

psychological and emotional abuse it is not. It seems an affront to justice that

the criminal law is unable to cope with this sort of situation.’

The terms ‘psychological assault’ or ‘emotional battering’ are frequently

encountered in practice to describe e motional abuse.3 I n some ca ses

emotional abuse can lead to physical deterioration or even to suicide.4

Assault is a constantly evolving crime, and in this context is it not time

to consider severe emotional abuse or emotional batter ing as a form

of direct or s ystematic ‘assault’ on the mi nd of X? Surely a ‘ thing said

is a thing done?’5 S evere emotional abuse or bullying is arguably as

serious as, or even more harmf ul than, a physical assault or even the

expectation of a future physical attack.6 In a def‌inition which has t wo

legs, Snyman def‌ines assault as follows: 7

‘[A]ny unlawful and intentional act or omission

(a) which results in another person’s bodily integrity being directly or

indirectly impaired, or

(b) which inspires a belief in another person that such impairment of her

bodily integrity is immediately to take place’.

This def‌in ition differs from his previous def‌init ion where assault was

considered to be t he application of force or the inspiring of a belief

in another that immediate force is to be applied.8 Despite the revised

wording in the new def‌i nition, Snyman’s explanation of the crime of

3 See for example S v Engelbrecht 2005 JOL 13771 (W) at para [71] (‘verbal and physical

assault’); A Reed ‘Offences against the person: The need for reform’ (1995) 59 Journal

of Criminal Law 194 where he refers to a ‘psychological assault’; ES Snyder ‘Remedies

for Domestic Violence: A continuing challenge’ (1994) 12 Journal of the American

Academy of Matrimonial Law 340 where he refers to a ‘psychological assault’ in the

case of battered woman abuse. See further J Garbarino, E Guttman & J Wilson Seeley

The Psychologically Battered Child (1986) 3 (‘verbal assault’); F Boland ‘Psychiatric

injury and assault: The immediate effect of R v Ireland, R v Burstow’ (1997) XIX (2)

Liverpool Law Review 232. In the UK, assault is also sometimes referred to as ‘psychic’

assault. R Card, R Cross, P Asterley Jones Card, Cross and Jones Cr iminal Law 19th

ed (2010) 189.

4 See R v Dhaliwal [2006] 2 Cr App R 24; [2006] EWCA Crim 1139. In this case the

defendant’s wife hanged herself and this was mainly attributed to an extended period

of psychological abuse by the defendant. See also Stannard op cit (n1) 534.

5 R v Ireland R v Burstow [1997] 4 All ER 225 at 236.

6 See S v Engelbrecht supra (n3) at para [52] where it is stated that ‘the threat of violence

or psychological or emotional cruelty endures beyond the immediate proximity of the

victim or perpetrator’.

7 CR Snyman Criminal Law 5ed (2008) 455.

8 CR Snyman Criminal Law 4ed (2002) 430.

2 SACJ . (2012) 1

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