The right of self-defense is the right of a civilian to justifiably engage in violent actions for the sake of defending one’s self, one’s property or the lives of others. Self-defense can be asserted as an affirmative defense to criminal charges for an act of violence, providing justification for the violent actions and absolving the accused of any criminal liability. In essence, acting out of self-defense can negate the requisite mens rea required to assert criminal liability in many circumstances.
The affirmative defense of self-defense is based on the theory that people have a right to protect oneself from physical violence and need not wait until he or she is actually hurt to act. Article 12 of the Universal Declaration of Human Rights states that “[n]o one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” While Article 12 does not require codification of a right of self-defense, it does exhibit the fundamental importance of being able to remain free of violent interference upon one’s person, privacy and home.
Historically the law made no distinction between defense of the self and defense of property. However, the advent of centralized police forces has led modern legal regimes tend to treat the two as distinct defenses as the law shifted the responsibility of peace keeping off of the individual and onto a government run security force.
As a practice note, if a defendant claims he acted in self-defense, he admits that he did in fact commit the crime but claims his actions were justified by the victim’s threatening actions. In evaluating whether you might be able to successfully argue self-defense for your client, you should determine whether there is evidence of a physical struggle (e.g., whether your client has scratches or other injuries) and also pay attention to the relative size of your client and the victim.
The Rome Statute of the International Criminal Court provides for an insanity defense. Article 31(1)(c) provides that a person shall not be criminally responsible if, at the time of that person's conduct:
"The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph;"
While the Rome Statute codified the customary international law norm of self-defense, neither the International Criminal Tribunal for Yugoslavia nor the International Criminal Tribunal for Rwanda have statutory provisions regarding self-defense. The ICTY has however noted that self-defense as defined by the Rome Statute was a part of generally accepted criminal law practices and will be incorporated into cases before the tribunal. The ICTY did however note that merely alleging that an action was a "defensive operation" would not in and of itself excuse criminal liability for any crimes against humanity that might result.
Specific Country Approaches to Self-Defense
As noted above, while the right to freedom from arbitrary interference or attacks is recognized by Article 12 of the Universal Declaration of Human Rights, each sovereign is free to establish rules on how the justification of self-defense might absolve an actor from criminal liability for violent acts.
In a 2010 decision, the Supreme Court of India conducted a thorough review of the right of an individual to justify violent actions made in self-defense under its “private defence” principle, clarifying ten aspects of its application as follows:
1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defense within certain reasonable limits.
2. The right of private defense is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
3. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offense in order to give rise to the right of private defense. It is enough if the accused apprehended that such an offense is contemplated and it is likely to be committed if the right of private defense is not exercised.
4. The right of private defense commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
5. It is unrealistic to expect a person under assault to modulate his defense step by step with any arithmetical exactitude.
6. In private defense the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
7. It is well settled that even if the accused does not plead self-defense, it is open to consider such a plea if the same arises from the material on record.
8. The accused need not prove the existence of the right of private defense beyond reasonable doubt.
9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offense.
10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.
The Penal Code of Sri Lanka provides for a defendant to justify a violent act against an aggressor under the theory of “private defence.” Every person is granted the right to defend his own body or the body of another “against any offence affecting the human body” or the property of himself or another against acts of “theft, robbery, mischief or criminal trespass.” The right of private defense in no case extends to inflicting more harm than is necessary for the purposes of defense.
Penal Code § 93 provides the situations in which deadly force may be employed in private defense, including under threat of death, grievous harm, rape and kidnapping. Similarly, Penal Code § 96 provides the situations in which deadly force may be employed in defense of property, including in response to robbery, house-breaking at night, mischief by fire or explosives and theft, mischief or house-trespass combined with a reasonable apprehension of death or grievous injury.
The right of private defense commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offense and continues only so long as that apprehension of danger to the body continues. Similarly, the right of private defense of property commences when a reasonable apprehension of danger to the property commences but terminates at different points depending on the type of threat perceived.
The right to private defense is not available when an individual has opportunity to retreat to the protection of the public authorities and is not available against acts that do not reasonably cause the apprehension of death or grievous harm done by a person acting as a public servant or at the direction of a public servant.
The Penal Code allows a person acting in private defense to run the risk of harming an innocent third party when the defender reasonably apprehends a threat of death but is so situated that he cannot effectively exercise that right without risk to the third party.
The United States generally recognizes the affirmative defense of “self-defense” to avoid criminal liability for certain violent acts. However, self-defense is not a right guaranteed by the Constitution or federal government, and each state is free to define the contours of the legal doctrine through legislation and common law.
Defense of Self
The privilege of self-defense is based upon a person’s reasonable beliefs as opposed to objective reality. A person is thus justified in using force to protect himself if he subjectively believes that such force is necessary to repel an ‘imminent, unlawful attack,’ even if objectively that belief might be false. Increasingly, courts have applied a “reasonable person in the defendant’s situation” standard as opposed to the “reasonable person” standard, and will look to factors like defendant’s knowledge about his assailant, prior experiences between the parties, the physical attributes of the parties involved and physical actions undertaken by the assailant.
If a reasonable person would not ever have felt threatened, then self-defense is not justified. If a thief attempts to steal a person’s wallet but then runs off without making any perceived threat of physical harm, the defendant would not be justified in any violent acts of self-defense against the aggressor. Importantly the reasonableness of perceived danger can change throughout the course of the interaction with an aggressor. Once an assailant has been subdued, for instance, it will no longer be justified for the defendant to commit a violent act against him in self-defense. Any perceived danger should have ceased and any reasonable person in those circumstances would no longer feel threatened. This extends to “revenge” type acts as well – if a rape victim subsequently tracks down the rapist and shoots him, the elapsed time between the actions would obviate any justification by self-defense.
One of the most famous self-defense cases in the U.S. was The People of the State of New York v. Bernhard Goetz, wherein New York’s highest court, the Court of Appeals, determined that the use of deadly force in self-defense cannot be entirely subjective and that a defendant’s reasoning must have some objective element of “reasonable belief” in order to justify violent action. Goetz also introduced considerations of the defendant’s personal history into self-defense consideration.
Courts recognize divergent justifications for deadly force versus non-deadly force when acting in self-defense. At common law, the level of force allowed in response to an attack depends on the defendant’s reasonable belief of the type of attack he faces – only when the defendant reasonably believes he faces an imminent and unlawful deadly assault is deadly force allowable. Otherwise, he must resort to non-deadly force to repel the imminent and unlawful attack. The Model Penal Code § 3.04(2) attempts to remove some of the uncertainty of the “reasonable person” test by defining four situations in which deadly force is justified – as a response to protect oneself from death, serious bodily injury, forcible rape or kidnapping.
Jurisdictions are sharply split on the so-called “retreat rule,” which provides that if a defendant is able to safely retreat from an aggressor and therefore avoid using deadly force, the defendant must do so and any use of deadly force will not be justified. The Model Penal Code similarly requires a defendant to retreat if he can safely do so to avoid using deadly force. However, both common law and the Model Penal Code allow for the “Castle Rule” exception to the retreat doctrine – when in one’s home (his or her “castle”), one need not retreat from an aggressor before resorting to the use of deadly force. “Castle Rule” and retreat laws different from state to state.
While at common law a defendant’s failure to prove all required elements of self-defense made the defense wholly unavailable, some states and the Model Penal Code now recognize an “imperfect” self-defense claim, which can support a defendant’s conviction of a lesser charge such as involuntary manslaughter as opposed to murder as a result of his violent actions. Some states similarly apply a common law principle to reduce charges against a person acting in self-defense that injures an innocent bystander under a transferred-justification doctrine. The Model Penal Code however rejects this transferred-justification doctrine.
Another extension of the self-defense doctrine is the “Battered Woman Syndrome” defense. Many courts accept that when a battered woman who routinely is subjected to abuse at the hands of her spouse or partner responds with deadly force when facing an imminent attack, the self-defense is justified. Courts however are split on allowing for a battered woman to kill her abuser during a lull in violence and not in response to any imminent attack. Some jurisdictions consider the pattern of abuse so traumatic that any violent act of self-defense is justified even without an immediate threat of force by the aggressor. No courts however allow for a battered woman to hire a third party to murder her abuser.
An initial aggressor may be able to assert a justification of self-defense in one of two circumstances: withdrawal and sudden escalation. If an initial aggressor makes a good faith effort to remove himself from the fight, and communicates to the other person his desire to do so, then the initial aggressor may act in self-defense if the other participant refuses to withdraw as well. Similarly, the initial aggressor may act in self-defense if in the initial victim suddenly escalates a minor fight into one involving deadly force without giving the aggressor a chance to withdraw.
Defense of Others
In U.S. law, the same rules for self-defense extend to the use of force to protect another person from danger. The Model Penal Code provides that the use of force to protect another is justifiable when (a) the actor would be justified in using such force to protect himself against the injury he believes threatened upon the person he seeks to protect, (b) the person he seeks to protect would reasonably be justified in using such protective force, and (c) the actor believes his intervention is necessary to protect the other person. The rules of retreat similarly extend to the actor seeking to protect a third person.
Defense of others adds the element of reasonable belief of another’s mental state into the justification inquiry. A defendant asserting a defense of others claim must not only show that his apprehension of imminent harm was reasonable but also that the person he sought to protect was, reasonably, in apprehension of imminent harm as well. While the same “reasonable person” standard would apply to both inquiries, this additional element of proof complicates the defense of others inquiry. Most courts however will not allow for a defense of others justification in the course of an illegal fight or illegal activity.
Defense of Property
U.S. law also extends the right of self-defense to the use of force to protect property from danger under limited circumstances, including (a) preventing or terminating unlawful entry, trespass or carrying away of tangible property and (b) to re-enter land or retake tangible property that the actor believe rightfully belongs to him when the force is used immediately after dispossession. The Model Penal Code limits the justifiable use of force however. The person acting in defense of property must make a request for the transgressor to desist under reasonable circumstances, cannot exclude a trespasser if the exclusion exposes him to substantial danger or bodily harm and cannot use any device designed to cause death or serious bodily harm in the process of protecting the property. Deadly force is only allowed in the defense of property if the actor believes that the person against whom the force is used is trying to take their dwelling without a claim of right or the person against whom force is used has employed or threatened deadly force against the actor in the course of attempting to commit arson, burglary, robbery or other felonious theft and destruction of the property.
- Geert-Jan G. J. Knoops, Defenses in Contemporary International Criminal Law, p. 140-142, available at http://books.google.lk/books?id=3LMvleMMdmUC&printsec=frontcover#v=onepage&q&f=false, discussing Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2 (Feb. 26, 2001)
- Darshan Singh v. State of Punjab, Supreme Court of India, Criminal App. Jurisdiction (2010), available at https://docs.google.com/fileview?id=0B6hXZkfsIpLQN2Y2MzM3NjAtMTA5My00NzJkLThjYTUtNGFmYTY4YTEyM2Q0&hl=en_GB&pli=1
- enal Code §§ 89 – 99 (No. 2 of 1883), available at http://www.lawnet.lk/process.php?st=2001Y1V19C&hword=%27%27&path=5
- Penal Code § 90
- Penal Code § 92
- Penal Code § 95
- Penal Code § 98
- Penal Code § 92
- Penal Code § 99
- LexisNexis Law School Study Outline, Chapter 8 – Self Defense, available at http://www.lexisnexis.com/lawschool/study/outlines/html/crim/crim08.htm
- People v. Goetz, 68 N.Y.2d 96, 497 N.E.2d 41 (N.Y. 1986), available at http://wings.buffalo.edu/law/bclc/web/nygoetz.htm
- Model Penal Code § 3.04, available for download at http://law.fordham.edu/assets/Faculty/model_penal_code_selected_sections(1).pdf
- Model Penal Code § 3.04
- For a further discussion of the “Castle Rule”, please see http://en.wikipedia.org/wiki/Castle_Doctrine
- Model Penal Code § 3.09, available for download at http://law.fordham.edu/assets/Faculty/model_penal_code_selected_sections(1).pdf
- LexisNexis Law School Study Outline, Chapter 8 – Self Defense, available at http://www.lexisnexis.com/lawschool/study/outlines/html/crim/crim08.htm
- Model Penal Code § 3.05, available for download at http://law.fordham.edu/assets/Faculty/model_penal_code_selected_sections(1).pdf
- Model Penal Code § 3.06, available for download at http://law.fordham.edu/assets/Faculty/model_penal_code_selected_sections(1).pdf