Here’s an issue I’ve been pondering:
(This is admittedly for a paper that I am writing, but I have mostly formulated my view and I think it’s an interesting subject. So mods go ahead and kill the thread or relegate it to Mundane Babble if you want - whatever. At the very least writing this will help me get my thoughts together.)
Most jurisdictions, when considering a claim of self-defense, require proof of something like these 4 criteria:
the defendant was under an unlawful present, imminent, and impending threat of such a nature as to induce a well-grounded fear of death or serious bodily injury to himself [or a family member]; and
the defendant had not recklessly or negligently placed himself in a situation in which it was probably that he would be forced to choose the criminal conduct; and
the defendant had no reasonable legal alternative to violating the law, that is, he had no reasonable opportunity to avoid the threatened harm; and
a reasonable person would believe that by committing the criminal action he would directly avoid the threatened harm.
There are a few issues to consider here: what does ‘reasonable belief’ mean?, for example. However, I want to argue that when evaluating a claim of self-defense, a narrow reading of the imminence doctrine (criterion 1) requires too much in terms of spatial and temporal immediacy. A more liberal reading or, better, a change in legislative diction from “imminent†to “inevitable†danger would better serve the law’s intent to punish the guilty while acquitting the innocent.
‘Imminent’ is generally read as equivalent to ‘immediate,’ but temporal immediacy ought to be irrelevant so long as criterion 3 is fulfilled. If the defendant has “no reasonable opportunity to avoid the threatened harm,” why should it matter when the threatened harm is to occur?
Note that insisting on inevitability requires that no other options be available to the defendant. The greater the space and time differences between the threat and the allegedly inevitable act, the less likely it is in fact inevitable since more alternatives to violence become available with more time, so exaggerated claims about defense become difficult - the defendant has to show that he reasonably believed both that he could not go to the authorities or seek some other help, and that the violence he feared was in fact inevitable but for his killing the would-be attacker.
reasonable belief means whatever the judge or jury believes it to mean…
you may believe you have a reasonable belief but if the judge or jury see it otherwise, you’re toast…
inevitable and immediate can leave too much room for play… say a wife knows that when the drunken husband crashes through the door after the bar closes again that he may beat her as he had done previously… the jury may be sympathetic to her and say she was justified by shooting him, but the jury could also say well she knew he was coming home drunk and if she wanted to avoid the trouble she could have left or called the police or something besides shooting the bastard (even though he deserved it)… she had the chance to do something to defend herself besides shoot him and this is why “inevitable” really isn’t “inevitable” … you will find this same argument works against the “immediate” threat as well…
(and you have thought and written extensively on the topic before asking the question so it doesn’t need to be moved)
I take ‘inevitable’ at its literal meaning: unavoidable by any means. If the jury thinks she has other options, it has merely rejected her attempt to show inevitability - she had other options but did not avail herself of them.
When, then, is self-defense a viable claim, in your view? Even in the most narrow sense of immediacy, one can never be absolutely sure the attacker is going to kill you. One can only have a belief about the counterfactual “If I hadn’t shot him he would have shot me.” If self-defense is to be allowable at all, the defendant has to be able to rely on some reasonable belief that he forms from evaluating the circumstances. Most courts allow the defense only if the threat is immediate - the victim (the original aggressor) actually pulled a gun, but I shot him first.
But say you had just as reasonable a belief that someone was going to attack you at some time in the future where defense would be impossible. Further, suppose you believed, just as reasonably, that you could not go to the police for help. In one of the cases I’m considering the defendant, an immigrant, felt that because of his cultural background and poor command of english, the police would be unable or unwilling to help. The appeals court granted that his beliefs that (a) an attack was inevitable and (b) the police would not help him were reasonable, but upheld his conviction anyway on the grounds that “‘inevitable harm’ is not the same as ‘imminent’ harm. [A] reasonable fear of future harm does not authorize a person to hunt down and kill an enemy.” These two holdings seem incompatible: the defendant is left with no legal option but to wait for the time when an attack is actually immediate, then try and defend himself. He felt that he would later be unable to do so, and therefore took proactive action to kill the would-be aggressor.
Now in this case it might be argued that the defendant had no options. That’s surely questionable. But granting as the court did that he did not, he seems left with no legal alternative to death, which seems patently wrong to me. If inevitability had been enough and he shows it (damn hard to do), he ought to get the defense.
My understanding is that there is room for and individual’s belief, so long as that belief is ‘reasonable’ (a term not really well-defined or explained in law). For example, if I threaten you with an unloaded gun, you’d get a self-defense claim if you killed me with the honest belief that the gun was loaded and I was about to kill you. This gets a bit fuzzy when the belief is true but unreasonably formed: an otherwise sane and rational man irrationally forms the belief that the next redheaded person he sees is going to kill him, so when he sees one on the street he kills him. As it turns out, he was right, but the belief was formed unreasonably. Ought he to get the defense?
PS I’m speaking with the knowledge gained from my undergrad Philosophy and Law course…any actual legal minds want to speak up on this?
The lack of certaintly is exactly why self defense is permitted. Any violent confrontation can turn lethal very easily - for all the efficiency and resiliency of the human body, it can be surprisingly frail. It’s not uncommon for people to die in “simple” bar fights. Anytime you engage in social violence the stakes can be higher than you realize. And anytime a stranger is willing to use violence to take something from you, you can reasonably infer that your life is in jeopardy. Whether the law will acknowledge it is another matter.
I heard somewhere that, technically, a boxer could be charged with assault or battery if he injures his opponent. I think it was also argued that if his opponent died, he could be charged with murder; apparently, the survivor could not argue that the victim agreed to the fight.
(Makes sense I guess; a bar brawl is no different.)
The difference is probably that the boxer signs some sort of release/ disclaimer in his contract for the fight, thereby absolving him of civil charges (a lawsuit demanding monetary compensation).
Also, the government regulates this sort of thing nowadays: licenses have to be issued, contracts signed, fees paid, etc. This appears to be an implicit endorsement of the violence that occurs in the ring, and an agreement not to press criminal charges.
Neither of these legal safeguards exist in a barfight. However, note that the original aggressor in such an encounter is always going to be charged and convicted of more serious crimes than an innocent who injures or kills someone in an act of defense.
That same boxer outside the ring is culpable for his actions if he initiates a fight. In a sanctioned bout a fighter would only be subject to prosecution if he did something grossly illegal in the ring (eg kicked his fallen opponent to death).
Trained fighters are generally held to a higher standard by the law, whether boxers, wrestlers or martial artists. Not that those skills necessarily translate well to “street” violence.
Seems logical. However, I doubt very much that The Law would absolve someone who killed someone in a barfight if he produced a disclaimer signed by his victim.
I can imagine that The Law would say that the disclaimer is not valid, because it is against public policy to allow bar fights.
There was a case a few years in Britain where a group of sadomasochists did what sadomasochists do (well, what the sadists do to masochists). One of the participants was badly injured, and his ‘attacker’ was charged and sentenced. Even though the victim had agreed to his own torture (I think he agreed to have pins stuck in his scrotum).
The judge said that no one is allowed to agree to such treatment.
Obviously I don’t dispute that, Noel- you’re right, for the most part. Bouts sanctioned under the auspices of state athletic boards are generally exceptions to the normal laws. Ditto for things like football games; a hit has to be really aggregious and counter to the rules of the game before assault charges are filed.
I was alluding to the fact that trained fighters are held to a higher standard on the “street”. In many states such a person is considered “armed” due to the perceived disparity between their skills and the average person.