Saturday, 1 February 2014

Self-Defense and the Law

I think that any discussion about self-defense should also include a brief foray into the legalities surrounding it. While it is always important to defend yourself, I get the impression that there are people who are confused as to what actually constitutes "self-defense" in the legal sense of the word, and what is necessary in order to (hopefully) successfully put a self-defense plea forward in a court of law.

Some things to keep in mind: 

  • Claiming "self-defense" is an affirmative defense, meaning that you are agreeing with the facts of what you did. It's important to remember that if your plea doesn't work, you've essentially pled guilty. 
  • The burden of proof is on the defense (that's you!). You need to show beyond a reasonable doubt that your course of action was appropriate for the circumstances in order to safely resolve the situation.
  • Beyond that, you may have to explain why lesser actions would not have worked, why you felt threatened, and why any reasonable person would have believed that they were in danger if you have to go to court. 
  • If you stayed when you could have left after a verbal challenge or an argument, it wasn't self-defense.
  • You must be able to articulate that this person was a threat to you in three specific ways: 
    • Intent - that the Threat indicated to you (and you must be able to explain how you knew) that he/she wanted to harm you 
    • Means - he/she must have the means to carry out their intent (sometimes simply their size, their demeanour, their fists, etc. will suffice).
    • Opportunity - he/she must be able to reach you with the means (if someone shows intent and means, but are yelling at you from the street while you are inside your house, they do not yet likely have the opportunity to carry out their act of violence against you). 
  • After  you articulate how this person was a threat, you need to be able to demonstrate preclusion -- that you didn't have any other viable option (you couldn't leave, you couldn't talk your way out, you couldn't call for help, or help wouldn't arrive in time). You must be able to explain why force was the one option that would safely work. 
  • Self-defense situations change quickly the longer they go on, which means that the intent, means and opportunity will change, too; you may no longer be defending yourself at a certain point into the scenario. The goal is to end these situations as quickly as possible, and to seek help at the first opportunity to do so.
  • If you are surprised, this often automatically justifies a high level of force. 
  • If you are losing, then you aren't using enough force to resolve the situation safely for yourself. 
  • At the end of the day, it's important for you to get home safely. A police officer friend of mine once said that he would rather be judged by twelve than carried out by six, meaning that he'd rather face the courts for his actions than be dead and not even have the opportunity to do even that for not defending himself properly. Do what you have to do to survive any assault against you, but the key is to make sure that your response is appropriate to the attack (i.e. someone punches you in the arm and you go shoot them in the leg - that's not a proportionate response). 
I am not a lawyer, and this post is not intended to give you legal advice, but it hopefully will get you thinking about self-defense and the law. Every country and province/state therein have different rules when it comes to self-defense, so I strongly suggest that you read up on them and become familiar with the laws where you live.  

For further information and an interesting read on this topic Miller, Rory. Facing Violence: Preparing for the Unexpected. USA: YMAA Publication Centre, 2011.