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

• Author: Dorothy Appelbe
• Position: B.C.L., LL.M.
• Pages: 158-171

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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.