Self-Defense: Can You Protect Yourself and Avoid the Slammer?

"Sell-Defense: Can You Protect Yourself and Avoid the Slammer?" is taken from the chapter by that name in Miller's Court (1982). Miller's title poses a question of interest to everyone concerned about violent crime. Some of what the law says regarding your right to defend yourself may surprise you. What happens to you, for instance, if the assailant you bop in panic, falls, hits his head, and dies?

Self-defense flourishes in periods and places in which the law is weak or nonexistent. In ancient China, Buddhist monks, harried by bandits beyond the control of the central government, developed the techniques that were to become karate and Kungfu as a means of unarmed self-defense. And in the American Old West, where the law stopped at least one town back toward the east, men wore Colt forty-fives strapped to their sides as part of their normal dress.

The right of self-defense, however, becomes severely restricted as civilization closes in. In a modern, law-abiding society, you do not have the right to “settle affair” for yourself; rather you must look to the official organs of the government — the police and the courts — for protection from the lawless behavior of others. Indeed, Thomas Hobbes, one of the more morose English political philosophers (in a line worthy of comic Rodney Dangerfield, Hobbes once wrote that life is “poor, nasty, brutish, and short”), conceived the information of the state as taking place when each man relinquishes his sword to the king, who then becomes the sole possessor of power and the source of justice and safety for all.

Unfortunately, as we all know, the cops can’t be everywhere at once. So, the law will let you take certain measures to protect yourself... Just what you can do - without ending up in the slammer - is the subject of this essay.

Imagine you're a woman living alone in a big city. Lately, a number of people in your apartment building have been mugged right in the neighborhood - the worse place is an unlighted section of street near where you get off the bus from work. Since you often stay late at the office, you have no choice but to walk there after dark. A neighborhood committee has approached the police about getting more protection, but the police say that they already are spread thin and can't spare the manpower. To make matters worse, the city is in financial trouble and will be laying off officers, so in the future you can count on even less protection.

It's becoming clear to you that the neighborhood isn't going to get any safer, so you begin thinking about what you can do to protect yourself. Your thoughts grow more serious when you learn that the woman who lives across the hall was badly beaten by a mugger near the bus stop. Now you're really determined, but what's the first move? Should you learn karate, or buy a gun or can of Mace? Are any of these measures illegal - will they get you into trouble? Now that you're actually considering self-defense, you realize you really don't know what you're allowed to do.

So, the first thing you do is ask a lawyer friend what your rights are. He tells you that the law differs from state to state, but that the basic rule is that you can use reasonable force to repeal real or apparent attack, The amount of force that is "reasonable" differs according to the circumstances, but you're generally justified in using the same amount of force against your assailant as he is using, or proposes to use, against you. And you are allowed to use deadly force (which is force likely to kill, even if it doesn't succeed) against an attack that could kill you or cause you serious bodily harm.

In some states, however, there is a duty to retreat before resorting to deadly force: You must make an effort to escape, if it appears that you can do so safely, before you are entitled to use it. The classic case is the fight at the local saloon, in which the aggressor pulls a knife on the other man, who responds by pulling out a gun. Can he shoot if the knife wielder advances upon him? Not in a duty-to-retreat state if there's a back door to the saloon and he can safely run away. As you can see, the duty to retreat places a higher premium on human life than on human dignity. Thus, it is not surprising that the states that allow you to "stand your ground" are generally found in the South and West regions where the notion of "a man's right to be a man" is more deeply rooted than it is in the East.

Even in states that require you to retreat before using deadly force, there's an exception to the rule: You're generally entitled to stand your ground in your own home if you are menaced by an intruder. This sterns from the old idea that your home is your castle, and that you should not have to retreat from the one place that is indisputably yours. But even in this context, society’s desire to preserve life and discourage “frontier justice" has led a few courts to limit the defense of the home by force.

So now that you know the rules, what do you do next? You enroll in a self-defense class given especially for women. You learn how to chop throats and gouge eyes and stomp insteps and throw all sorts of exotic punches and kicks. You work out diligently, practice hard, and after eight weeks you're given your diploma, which officially declares you a mistress of unarmed combat.

Now, let's suppose a week after graduation from self-defense -school, you get off the bus late one night and start walking home. Suddenly a man comes up and grabs you and starts to wrestle you to the ground. You use your newly acquired expertise to knock him flat on his back. Obviously, you can't be convicted of assault. This is a clear case of self-defense, since you acted to protect yourself from physical attack. A court most likely would conclude that you used reasonable force to repel the attacker, especially since you did not employ deadly force.

Let's say that when you knock him down, he hits his head on the pavement and dies. Does that change anything? The answer is that it probably doesn't, since his death was not a result that could reasonably have been expected to follow from the amount of force you used in the course of legitimate self-defense. In other words, you did not use deadly force, even if death in fact resulted. Assuming that your use of force was justified, the law won't hold you responsible for any unforeseen injury to your opponent

But what if the man hadn't actually gotten close enough to grab you? What if he had suddenly emerged from the shadows, and without waiting for more, you had delivered a kick that sent him sprawling? Suppose it turns out he's a perfectly respectable citizen who just wanted to ask you for directions?

The rule is that you can use force against what reasonably appears to be an attack, even if you were mistaken and weren't really being threatened. For example, if someone points a fake gun at you as a practical joke, you can use force, in this case even deadly force, if under the circumstances you reasonably believed that the gun was real and that the person was about to shoot you. Similarly, if you reasonably believed that the man approaching you was about to attack you, then you would be entitled to protect yourself, even if it turned out that your "assailant" only wanted directions. The key, of course, is whether you were reasonable in believing you were under attack. You are not allowed to let fly every time someone comes near you, or bumps you, or says something unpleasant.

So what happens when you flatten the man who wanted directions? If he did no more than walk toward you, you probably were not justified in using force. He would have had to have done more for you to say you believed he was about to attack you - for example, if he had said something, or had made a threatening gesture, or followed you for a ways before approaching you. But unless you can supply some reason for your "belief" that you were under attack, you can be charged with the crime of assault, and also can be sued by the man you knocked down for money damages to compensate him for his injuries.

How do you react to that? Not surprisingly, you might say that you are an unarmed woman and that if you wait for a potential assailant to make his intentions it may well be too late for you to defend yourself. There may be some truth to your argument, but in addition to your safety, the law has to consider well-being of innocent people who might want to use the city streets. Suppose that you weren't the woman who was approached on the street but were the wife or close friend of the mart who minted directions. How would you feel about his being clobbered by someone who was so jumpy she struck him before even attempting to find out what he wanted?

Thus far we've considered unarmed resistance. But what about weapon? And under what conditions can you use deadly force?

Let's say, you've been going to self-defense school for eights weeks, but so far, the most you can break with your mighty chop is a Hershey bar. Worse yet, your instructor tells you that it takes up to two years before most people can be considered proficient in unarmed combat, and that in your case he thinks that's an extremely optimistic projection. You begin to doubt you’Il ever be a mistress of unarmed combat. So, you decide you'd better get a weapon. There's an old penknife under the sink, it's rusty and the blade just falls open, but it's the best you've got, so you drop it into your handbag.

The next night you have to work late at the office, and it's past midnight when you get off the bus and have to walk through the same dark stretch of street. A man comes out of the darkness toward you. You increase your pace, but he keeps coming. He grabs you by the hair and neck and starts to drag you into a vacant lot. In a panic you reach into your bag, pull out the knife, which drops open, and stab blindly at the man. He lets go and staggers away. You run to the nearest telephone and call the police. When they come, you lead them back to the vacant lot, where your assailant is found lying dead of knife wounds. At the police station he's identified as a convicted rapist, out on parole, who is suspected of having attacked two other women in the past month.

Justified self-defense? The answer is not absolutely clear. There's no question that you were entitled to defend yourself from the attack, but the question is whether you were justified in using deadly force. As stated earlier, the general rule is that you can resort to deadly force only if you reasonably fear your attacker will kill you or cause you serious bodily harm. In our imaginary case, it is not definite what he intended to do, since you killed him before he got very far. It's possible that he only intended to rob you, which would not have justified your using deadly force unless he threatened serious harm to you in the course of the robbery.

You argue that if you wait for him to prove he's making a deadly attack, it may be too late for you to make any defense at all. You say it's one thing to require you to wait to see if he means to attack you, but quite another to expect you to “evaluate” the seriousness of an assault that's underway. You point out that as a woman confronted on a dark street by a man, who usually I will be significantly stronger than you are, you don't have the luxury of testing out the ferocity of his attack - you have to act forcefully and quickly. if you are going to have any sort of chance. You also point out that the man's history indicates that rape, not robbery, was his purpose.

Maybe so, but the law treats the use of deadly force as a very serious matter and permits it only in extremely limited circumstances. Your relative physical weakness does not automatically justify a quick resort to deadly force, although it can be a factor in determining if you acted "reasonably” under the circumstances. One difficulty with your case is that you responded with deadly force to an unarmed attack, and there is an old rule that an attack with fists or hands threatens only an “ordinary assault,” and thus does not justify a defense with a weapon.

By now you may be a bit annoyed at the law's concern about the attacker rather than the victim. How do you respond?

Well, you might say, (1) a man can do serious harm to a woman with just his fists, and (2) the man's prior record, plus the nature of the attack, indicate he was going to rape you. But let's face it, you didn't know anything about that record. Should that make a difference? Unfortunately — for you — it does. The attacker's history of rape-technically cannot help you, since the question of whether you used excessive force has to be determined according to what you knew at the time of the attack. This is the other side of the rule that an apparent attack, even if not real, justifies resistance: Only appearances seem to count. Thus, you cannot claim to be exonerated on the basis of facts you didn't know at the time.

Of course, his being a convicted rapist may help you in that the prosecutor probably will not bring a criminal action against you. The prosecutor is not obliged to charge everyone he thinks might have committed a crime; he uses what is called "prosecutorial discretion" to select which of the many potential cases should be taken to criminal court. Indeed, this discretion may be the reason why there have been relatively few cases in which a woman has been prosecuted for killing a man who tried to rape her. One result is that there is very little law on the question of whether rape constitutes serious bodily injury for purposes of allowing defense with deadly force. Although it's generally assumed that it does, there can't be a definite answer until more cases are decided (thus establishing clear precedent to be followed in other cases) or statutes are enacted to codify this assumption. Of course, even if it were determined that rape alone doesn't justify resistance with deadly force, the victim usually could claim. She had no way of knowing her assailant wouldn't go beyond the sexual assault and seriously injure her.

But enough theory— let's get, back to your case. What would happen if the prosecutor decided to bring you to trial? There's a good chance you'd be acquitted. In light of all the circumstances — a woman alone at night in a dangerous part of the city, the superior strength of your attacker, and the violence of the assault — a jury could easily conclude that you were justified in using deadly force. But be warned; Juries are notoriously unpredictable; moreover, they probably won't be told about the man’s rape record, since it's not relevant to how you reacted. Thus there's a chance they might decide that you were too quick to resort to deadly force, since the assailant was never definitely shown to have threatened you with death or serious bodily harm, and you could end up convicted of manslaughter.

Keep in mind that in only slightly different circumstances you would not be entitled to use deadly force - for example, if the man had threatened only to take your purse or knock you down or even to molest you. These assaults may be me with force, but not force likely to kill. Remember also that in many states you have a duty to-retreat, if it appears you can do so in safety before using deadly force. In an urban environment, the duty to retreat, which is really a duty to avoid deadly confrontation regardless of right or wrong, might take a different form from fleeing the scene of the commotion. Thus if the attack we've been considering had taken place in daytime on a crowded street, a court might say that you had an obligation to yell for help or physically resist before stabbing your assailant, since it is likely that someone would have helped you or that he would have been frightened off.

Finally, the use of deadly force is particularly risky in cases in which the assailant’s acts are ambiguous. Earlier we concluded that you could be charged with assault if you knocked down a man who just wanted directions. Your case would be much worse if you had stabbed him, not only because you would be up for manslaughter - or perhaps murder – instead of assault, but also because you would have a harder time justifying your apprehension as excusing your acts. If the law hesitates to let you assume that a man who walks up to you at night on a deserted street means to assault you, it will be even less inclined to let you assume he was going to kill you or cause you serious bodily harm. The fact of life is that if you're going to use a weapon, you'd better be sure you really have to.

The imaginary case illustrates the problem in applying the traditional law of self-defense to cases involving women. The law has grown up around quarrels between men and assumes the defender and his assailant to be of roughly equal size and strength. It also assumes that an attack without a weapon is not likely to result in death or serious bodily injury, which has given rise to the rule, already mentioned, that deadly force usually is not justified against an unarmed attack.

All this ignores the fact that a woman may be unable effectively to resist an attack by even an unarmed man without resort to weapons, and that she may be seriously injured by a man using only his fists. Still, the policy or severely restricting the use of deadly force makes changes in the law unlikely, although it is possible that the disparity in strength between attacker and defender will be considered more carefully in the future in deciding what was "reasonable" resistance under the circumstances.

Indeed, one recent case suggests that women should not be held to the same standard as men in deciding if they responded too quickly or with too much force, on the theory that they are prone to be fearful of attack because of the passive role traditionally assigned to them. It is questionable, however, that courts will accept this subjective analysis, since the law feels more comfortable with objective standards, which often rely on notions of "reasonableness."

Moreover, pressure to establish a separate standard for women is seen by some as inconsistent, at least psychologically, with the current movement to secure a constitutional amendment guaranteeing equal rights for women. It's somewhat analogous to the ambivalent reaction that greeted the United States Supreme Court's decision upholding the constitutionality of male-only draft registration.

Let's go back to the point at which you had just returned to the vacant lot with the police and round your assailant lying dead of knife wounds. Let's say that everyone agrees you acted in justified self-defense. Are you free to go home? Not necessarily. You could find yourself charged with carrying a concealed weapon. Every state regulates the possession or carrying of certain weapons. In New York, for example, it is illegal to own a gravity knife — one that opens by the weight of the blade. Since that old knife of yours opens that way, in New York you could be charged with a crime.

But everyone agrees that you used the knife hi justified self-defense, so how can you be charged with breaking the law? The answer is that the law considers defending yourself and carrying the knife to be "severable transactions,” which means they are looked at separately in judging whether you have committed a crime. As to stabbing your attacker, you acted in justified self-defense. But carrying the knife, whether you use it or not, is illegal, and you can be prosecuted even if it's agreed that you needed the knife to protect yourself.

The law on what weapons are illegal to possess or carry differs from state to state; local governments such as cities and towns may impose additional restrictions. In general, weapons such as gravity knives, switchblades, blackjacks, and especially firearms, are prohibited or strictly regulated. And you can't count on soft treatment just because you're a law-abiding citizen - at least one state has passed a law making a minimum jail term of one-year mandatory for anyone caught with an unlicensed firearm. So be careful – before you acquire any sort of weapon, you should find out if owning it is a crime or if it must be licensed.

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