The Theory of Justification and Excuse and its Implications for the Battered Woman

AuthorDorothy Appelbe
PositionB.C.L., LL.M.
The Theory of Justification and Excuse and its Implications for the
Battered Woman.
By Dorothy Appelbe. B.C.L., LL.M.
“Under what circumstances is a person criminally responsible for the harm that
he causes?” According to the Model Penal Code the answer is “ when the state
proves beyond a reasonable doubt that he acted voluntarily, with a wrongful state of
mind, and in the absence of any excusing conditions.”1 This piece will focus on the
closing phrase of the Model Penal Code’s answer, namely on the issue of how and
why society chooses to refrain from imposing criminal liability. It is the availability
of the criminal law’s exculpatory defences that enables the exercise of this option.
The question is, is this facility employed in the most optimal manner and for the most
deserving cases? In looking for an answer, one must first address why it is that
society finds it necessary to absolve responsibility in certain instances, before
examining the conditions for such absolution. Only then can one assess the adequacy
and suitability of our exculpatory defences, particularly in light of current
circumstances regarding domestic homicide.
There is much disagreement regarding the different classes of criminal law
defences, which permit an actor to go unpunished for his conduct2. Paul Robinson
defines these defences as “any set of identifiable conditions or circumstances which
may prevent a conviction for an offence.”3 He goes on to categorise them into five
groups: (a) failure of proof defences, (b) offence modification defences, both of which
involve the prosecution not establishing all the elements of the offence beyond a
reasonable doubt; (c) excuses; (d) justifications; and (e) non-exculpatory public policy
defences such as double jeopardy and the Statute of Limitations, which bar
prosecution, but do not alleviate moral responsibility. Justifications and excuses will
be the focus of this discussion. Morawetz describes these defences as involving
1 Dressler, Joshua. Reflections on Excusing Wrongdoers: Moral Theory, New Excuses and the Model
Penal Code. [1988] Rutgers Law Journal. 671 at pgs. 671-672.
2 The conduct I specifically refer to is homicide. Later in this discussion, it will becom e clear that
where a justificatory defence such as self-defence is successful, the act of homici de is not necessarily a
‘wrong’. This will be further elaborated in relation to the ‘distinction’ between j ustification and
excuse. See note 5 and the accompanying text.
3 Robinson, Paul. Criminal Law Defences: A Systematic Analysis. (1982) V ol. 82 Columbia Law
Review 199 at pg. 203.

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