How battered defendants fell through the gap: the impact of theoretical uncertainty on reform of self-defence in New Zealand

Abstract

In this thesis I look at proposals to reform the law of self-defence that grew out of the feminist critique of self-defence. The goal was to assist battered women who killed abusive partners and who pleaded self-defence. Only some of the reform proposals were accepted. I argue that some problems with theoretical accounts of self-defence affected the development of persuasive arguments in favour of reform. An argument to broaden a defence is more likely to be persuasive if expressed in terms of the basis of the defence. There was a significant gap between definitions of self-defence in theoretical writing and legal definitions of self-defence. There was no common approach to questions about the scope of self-defence built into the justification and excuse approach. It was neutral as to the basis of self-defence and operated with several different moral theories of self-defence (I labelled this phenomenon moral pluralism). Finally, the theoretical basis of the statutory definition of self-defence in New Zealand was unclear. The result of these theoretical problems was that the arguments in favour of reform could not easily be structured in terms of the philosophical basis of self-defence. Consequently they did not convince critics, who were concerned that the reforms would make the defence too wide. I suggest some strategies for the future that may result in more persuasive arguments for self-defence reform. They include the development of a more workable theory of self-defence, careful attention to criticisms of reform even when those criticisms do not appear to be valid, adaptation of reform ideas originally from other jurisdictions to ensure that they work equally well in New Zealand, and recognition of the limitations of factual re-analysis as a method of law reform.