Seld Defense or Fighting

[Tez3]

Do you know what the difference is? In one situation, you care if you go to jail or not.

You should always care whether you go to jail or not surely? If, as in your example your wife has been raped, how would killing the person responsible and going to jail help her at the time when she needs understanding and support not a Neanderthal possessive reaction. It wouldn't not be self defence nor in defence of someone if you beat them up after the crime. If you use violence to prevent a crime against a person and can justify that violence it's self defence, you cannot however be a vigilante.

 

[Sapphire]

Thanks for the response. You see, now we're getting into a deeper philosophy. Your emotions run high after finding out that the one you love most had been assaulted, harmed, violated and abused, and you find that the criminal justice system isn't doing "enough" for you, so you take the law into your own hands. How many people would be able to say "you raped my wife, how could you? I will be apprehending you, calling the police, and having you sent to jail as soon as possible," without harming the assailant more than what was necessary to keep them where the police could get to them to arrest them?

Another situation (that happened near my home) would be something along the lines of this:
At a shopping mall, an overweight woman who adopted a young girl was jumped by a man hiding near/in her car (I forget which). The woman was stabbed to death, and the little girl was brutally raped. She managed to escape from the man, and she ran, mostly naked, down the parking lot and through the streets until the assailant lost sight of her, and some bystanders rescued her. This man is now rotting in prison for the rest of his life, mind you, but consider two possibilities:

1. If you were the parent, with only two seconds heads up to what was happening -- thus not being stabbed to death -- how would you react to a man no more than 5'5" tall, wielding a knife, hiding by or in your car, waiting for you?
2. If you were the bystanders, seeing a short and unimpressive man, wielding a knife, chasing after a mostly naked prepubescent child? In the actual event, the bystanders were driving, and simply allowed her to enter the car. Imagine you were on foot when this happened, and you had only moments to respond to a man running towards you with a knife.

Really the question to be asked is "how much control do you have in the heat of the moment?" or perhaps "is there a time when one shouldn't be bothered by the repercussions of protecting the helpless?"

 

[Tez3]

1. If you were the parent, with only two seconds heads up to what was happening -- thus not being stabbed to death -- how would you react to a man no more than 5'5" tall, wielding a knife, hiding by or in your car, waiting for you?
2. If you were the bystanders, seeing a short and unimpressive man, wielding a knife, chasing after a mostly naked prepubescent child? In the actual event, the bystanders were driving, and simply allowed her to enter the car. Imagine you were on foot when this happened, and you had only moments to respond to a man running towards you with a knife.

Your example of a wife being raped wasn't clear in the circumstances, it's unlikely that a husband would be stood by while a wife is being raped otherwise he would have gone to her defence, therefore your post implied that it was after the rape had been committed and the husband had gone after the rapist which is vigilantism in the eyes of the law. These situations are different, I know how I would react...as I have been trained to by my work as well as by my martial arts training.

 

[Sapphire]

Again, I like your response. Yes, I didn't give anywhere near as much context for the first situation. And playing the "if" game can be rather dangerous. But for discussions sake, perhaps a husband arrives home from work to find the front door wide open, the lights off, and a cry from upstairs, only to see that the damage had already been done and the rapist was about to make his exit. In the eyes of the law, yes, that is vigilantism for the husband to attack the assailant. But how many people in the real world would truly just say "you're not leaving until the police get here?" And would the man be blamed for his reaction? His beloved wife is crying, and in pain, and will need months to recover physically and mentally. If we're going to argue that "the law is the law," then obviously the husband would be sent to jail, but like I said, would you (or anyone), at the sight of your beloved in such distress, act 100% rationally?

 

[Tez3]

Again, I like your response. Yes, I didn't give anywhere near as much context for the first situation. And playing the "if" game can be rather dangerous. But for discussions sake, perhaps a husband arrives home from work to find the front door wide open, the lights off, and a cry from upstairs, only to see that the damage had already been done and the rapist was about to make his exit. In the eyes of the law, yes, that is vigilantism for the husband to attack the assailant. But how many people in the real world would truly just say "you're not leaving until the police get here?" And would the man be blamed for his reaction? His beloved wife is crying, and in pain, and will need months to recover physically and mentally. If we're going to argue that "the law is the law," then obviously the husband would be sent to jail, but like I said, would you (or anyone), at the sight of your beloved in such distress, act 100% rationally?

This though is yet another situation, and is covered under UK law as it's apprehending a person believed to have committed a crime which actually the police don't recommend as it is a dangerous option though understandable one. This situation doesn't mean the husband is going to prison at all.

 

[Tez3]

From UK law

"Use of Force against Those Committing Crime
Prosecutors should exercise particular care when assessing the reasonableness of the force used in those cases in which the alleged victim was, or believed by the accused to have been, at the material time, engaged in committing a crime. A witness to violent crime with a continuing threat of violence may well be justified in using extreme force to remove a threat of further violence.

In assessing whether it was necessary to use force, prosecutors should bear in mind the period of time in which the person had to decide whether to act against another who he/she thought to be committing an offence.

The circumstances of each case will need to be considered very carefully.

See Public Interest Use of Force against Those Committing Crime, below in this chapter

In R v Martin (Anthony) [2002] 1 Cr. App. R. 27, the Court of Appeal held that whilst a court is entitled to take account of the physical characteristics of the defendant in deciding what force was reasonable, it was not appropriate, absent exceptional circumstances which would make the evidence especially probative, to take account of whether the defendant was suffering from some psychiatric condition.

Final Consequences
The final consequences of a course may not be relevant to the issue as to whether the force used was reasonable. Although, the conduct of the suspect resulted in severe injuries to another or even death, this conduct may well have been reasonable in the circumstances. On the other hand, the infliction of very superficial or minor injuries may have been a product of simple good fortune rather than intention.

Once force was deemed to be unreasonable, the final consequences would be relevant to the public interest considerations.



Burden of Proof
The burden of proof remains with the prosecution when the issue of self-defence is raised.

The prosecution must adduce sufficient evidence to satisfy a jury beyond reasonable doubt that the defendant was either:

• not acting to defend himself/herself or another; or
• not acting to defend property; ornot acting to prevent a crime or to apprehend an offender; or
• if he was so acting, the force used was excessive.

Prosecutors should take special care to recognise, and ensure a sufficiency of evidence in, those cases where self-defence is likely to be an issue. "

 

[jks9199]

The bit about the burden of proof is interesting. In the US, self defense is an affirmative defense, meaning that the accused admits that they did commit the illegal act in question, but claims that they were justified in doing so and thereby excused of criminal liability. It pretty much has the effect of shifting the burden of proof to the defense, who must show that the justification existed.

 

[Tez3]

The reasoning being that it's not an illegal act if done in self defence so the CPS has to prove it was illegal. However despite what many people think they don't prosecute people who act in genuine self defence.

 

[Xue Sheng]

Article 35 - NY Penal Law

 

[Buka]

I know this might sound simple minded at best or completely niave at worst, but in self defense, fighting, whatever you want to call it, if you conduct yourself as an honorable man or woman and act accordingly, you'll be just fine, regardless of the other person's injuries. It has always served me and everyone I've ever known just fine, professionally or in our own personal lives. Not once did the thought, question or worry about the letter of the law ever come into question. (as if there would actually be time for that) it doesn't have to if you live right, regardless of the laws in your city, town, state or country, IMO.

The Yang to that Yin, is an old quote - "A friend helps you move. A best friend helps you move a body."