Professor Sean Davison agrees to plea bargain
19 june 2019
a word from professor sean davison
In a plea bargain agreement with the South African court I pleaded guilty to the charges I faced and received a three year house arrest sentence at my home in Cape Town.
I know there will be many people disappointed that I accepted a plea bargain, and did not go to trial. If I had done this I may have been found not guilty, and thereby lead to a law change. However, I was facing three life sentences in prison and the stakes were too high. I have three young children and my children want a father not a martyr.
I want to thank the thousands of people in South Africa and around the world who have sent messages of support and encouragement. The nine months since my arrest has been a harrowing journey, and this kind support has made it bearable.
Updates pertaining to Prof. Sean Davison’s upcoming trial
24 may 2019
a word from professor sean davison
Yesterday, 24th May 2019, I appeared in the Cape Town magistrates court for the fifth time, where my case was formally transferred to the High Court. A pre-trial hearing will be held in the High Court on 19th June 2019.
Although these are difficult times I am buoyed by the debate and discussion my case is generating in South Africa and around the world. The more society embraces the issues my trial represents the more understanding it will be of the need for a law change. My case will come and go, but the issues it represents will not disappear until we have a humane law.
Thank you again for your wonderful support – it really makes this this journey much more bearable.
24 may 2019
OPINION | A victim of law: The injustice of Davison murder charges
By Professor Willem Landman:
Prof Sean Davison is charged on three counts of premeditated murder for allegedly assisting three people with debilitating physical conditions but mentally competent, and at their request, to end their lives.
Davison is a victim of a failure of our legal process, constituting a grave injustice. This can be explained with reference to the Hartmann case of 1975.
Dr Albie Hartmann was a general practitioner in Ceres. His 87-year-old father was dying of prostate cancer and other complications set in. A hospital nurse administered a high dosage of morphine on Hartmann's instruction. Shortly thereafter, Hartmann administered more morphine, as well as pentothal, and his father died within minutes.
Hartmann was charged with murder in the Supreme Court in Cape Town. Since all the elements of the crime were present, Judge Louis van Winsen had to find him guilty. However, the judge concluded that "this is a case, if ever there was one, in which, without having to be unfair to society, full measure can be given to the element of mercy".
Crucially, the judge had the freedom to sentence Hartmann to one year’s imprisonment. His prison sentence was, however, suspended until "the rising of the court" and he was a free man from the moment the judge left the courtroom.
Comparing the Hartmann judgment with Davison’s upcoming trial, two considerations illustrate the injustice being done to Davison.
First, since Davison, a murder accused, is now subject to a minimum sentence. Premeditated murder carries a mandatory punishment of life imprisonment, falling in the same category as gang rape, airline hijacking, and rape where the rapist knew they were HIV positive.
Removing a judge’s sentencing discretion in effect means that a court cannot accommodate any difference between murder committed with evil intent and assisted dying (assisting suicide and voluntary euthanasia). Surely, the legislator could not have foreseen an application of mandatory punishment so devoid of an understanding of the pathos of terminal suffering, compassion and common sense.
We have regressed since Hartmann, at least in respect of sensitivity of sentencing to the reality of suffering and dying. Davison is incomparably worse off than Hartmann, and that constitutes a grave injustice.
Moreover, Hartmann presumably did not know his father’s prior wishes and performed involuntary euthanasia. By contrast, Davison’s "victims" allegedly voluntarily pleaded (consented) to be assisted with dying since they were incapable of ending their own lives. But this distinction is of no consequence to our law and does not help Davison. It compounds the injustice being done to him.
Second, two decades after the Hartmann judgment we acquired constitutional rights that ought to inform our law in respect of assisted dying, thus taking care of the inappropriateness of regarding it as murder with its attendant minimum sentence.
However, we have failed to explore systematically those rights as they apply to assisted dying. This constitutes an inexcusable injustice by omission.
The Supreme Court of Appeal (SCA), no less, has much to say in this regard. In the Stransham-Ford appeal (2016), a full bench of five SCA judges foresaw the following happening: "When an appropriate case [not an urgent application] comes before our courts the common law will no doubt evolve in the light of the considerations outlined there [principles already embedded in our common law and our constitutional rights] and the developments in other countries."
The SCA then asks: "Would the more appropriate remedy be that adopted by the Canadian Supreme Court of a declaration of incompatibility [between the common law and our constitutional rights] joined with a suspension of the order to enable parliament to remedy the deficiency?"
So, the SCA foresees a court bringing a deficiency in our common law regarding assisted dying to parliament's attention for it to remedy that deficiency by decriminalising (one or both forms of) assisted dying through legislation, thus aligning our common law with our constitutional rights.
Parliament would then need to take notice of the growing public consensus that assisting someone to die – in the appropriate circumstances and in terms of strict guidelines – is morally justified. Recent and ongoing legal developments in other jurisdictions – such as the US and Canada – will then also be considered.
How, then, could Davison be put on trial while such a "deficiency" requiring a "remedy" exists in our law, something parliament has failed to rectify in the past almost quarter of a century since the adoption of our 1996 constitution?
Moreover, since 1999, parliament likewise failed to act upon the recommendations of the SA Law [Reform] Commission – appointed by President Nelson Mandela and chaired by chief justice (Ismail) Mahomed – that our law regarding end-of-life decisions be reviewed.
Unlike other groups, dying individuals' constitutional rights have not been appropriately recognised in our law, in contrast with groups that have an interest in practices such as termination of pregnancy, the abolition of the death penalty or polygamous and same-sex unions.
Simultaneously with the Davison case, the case of Dieter Harck will be heard in the North Gauteng High Court. Harck, suffering from advanced motor neurone disease, asks the court to be allowed to be legally assisted with dying when the appropriate time arrives. This is not an urgent application, hence all salient considerations will be argued in court.
The current legal vacuum requires that Davison's case be handled differently. Either it should somehow be joined with the Harck case or put on ice while that case winds its way through our courts, presumably eventually to the Constitutional Court.
The most honourable approach, however, would be to drop charges against Davison, or at least to press a lesser charge.
• Willem Landman is on the board of Dignity SA and was the founding CEO of EthicsSA (2000-2010). He is an independent non-executive director of the Ethics Institute of SA (EthicsSA) and professor extraordinaire of philosophy at the University of Stellenbosch (since 2000). He has degrees from the universities of Stellenbosch, Oxford (South Africa-at-Large Rhodes Scholar) and South Africa (Unisa), in philosophy, political philosophy, theology and law.
Full extract. Original opinion piece can be found here.
29 april 2019
a word from professor sean davison
Today, 29 April 2019, I appeared in court in Cape Town and was charged with the pre-meditated murder of Richard Holland in 2015; this is the third charge I now face. Richard Holland was a South African triathlete who broke his neck when he was knocked off his bicycle while training. As a consequence of this accident he developed locked-in-syndrome.
My next court appearance is on the 24th of May when a date for the High Court trial will be set. Once again I wish to express my immense gratitude to the messages of support my family and I have received from around the world; it gives us considerable comfort to know we are not alone on this journey.
29 april 2019
A THIRD CHARGE ADDED
Professor Sean Davison appeared in court this morning and faces an additional charge relating to the death of Richard Holland in 2015.
His bail has been extended until his next appearance on 24 May 2019.
Our thoughts are with him and his family.
NEXT COURT APPEARANCE
Professor Sean Davison’s trial has been postponed to 29 April 2019 at the Cape Town Magistrate’s Court.
No decision has yet been made by the Director of Public Prosecutions as to which court the matter will ultimately be heard in.
19 september 2018
STATEMENT BY DIGNITY SA
DignitySA learnt about the arrest of our colleague, Prof Sean Davison, yesterday, 18 September 2018. He appeared in a magistrates court in Cape Town on the morning of 19 September. The charge is one of premeditated murder. It relates to his assisting a quadriplegic friend to die in 2013. Bail was granted.
DignitySA awaits more information about the charges against Prof Davison. The law must take its course, as it should in a constitutional democracy.
Whereas we would do whatever possible to assist Prof Davison and his family in this difficult time, DignitySA wishes to reaffirm that our mission is a change in the legal position regarding assisted dying in South Africa. To this end we have been involved in the Stransham-Ford High Court case and the consequent appeal to the Supreme Court of Appeal, as well as a new High Court case that is pending, and the draft healthcare amendment bill to legalise advance directives.
As an organisation, we do not assist individuals with dying (assisted suicide or voluntary euthanasia) however wrong we believe it is that some people die in conditions of intractable and unbearable suffering.
Prof Davison has a private and professional life outside DignitySA and, like any good citizen, he takes responsibility for his choices.
We trust he will be given a fair hearing and, in particular, that the apparent conflict between our common law and the Bill of Rights in our Constitution will be argued in court. There is a class of people who, for no choice of their own, die in extremely distressful circumstances. Their rights have not been aligned with the Bill of Rights in the Constitution. For that reason, some individuals act compassionately in ways that might attract the attention of legal authorities.
~ Prof. Willem Landman
19 September 2018