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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