TOWARD COUNTERING CRIMINAL VIOLENCE WITH FORCEFUL RESPONSES
The Legitimate Use of Force in Self-Defense
A sixth-grader is going door to door, selling chocolates for a school fundraiser. A man sitting on his porch agrees to buy some candy and invites the girl inside while he gets some money. But then he whips out a knife and threatens to kill the 11-year-old if she doesn’t undress. As he throws her on a couch, she snatches the knife away from him, slashes him on the hand, kicks him in the stomach, and bolts out the front door. Within minutes, the man, who had served time for raping a 10-year-old relative, is placed under arrest for attempted aggravated sexual assault, kidnapping, and assault with a deadly weapon. (Smith, 1994)
An emergency room nurse returning home from work opens her door and is confronted by an intruder armed with a hammer. They clash, and she strangles him with her bare hands. Detectives determine that she acted with reasonable force to protect herself in her dwelling, as permitted by state law, so the prosecutor does not bring this homicide of a convicted felon with an extensive criminal record before a grand jury. (AP, 2006)
The ultimate right of an individual facing immediate danger is to resist victimization. People under attack are entitled by law to use proportional force to protect themselves. Self-preservation is a basic human right.
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Statutes governing fighting back in self- defense are not worded the same in each state because they have been shaped by four distinct rationales. According to a punitive rationale, using force against an attacker is permissible because any injuries the aggressor suffers are deserved. Under the rationale of necessity, the use of violence is excused when a victim fearing great harm has no choice but to resort to force as a means of self-protection. According to the indi- vidualist rationale, a citizen does not have to yield or concede any territory to those who would encroach on his or her autonomy. Under the social rationale for self-defense, resistance to attack is justified as a way of preserving law and order (Fletcher, 1988).
By definition, the right to self-defense is the permissible use of appropriate force to protect one’s life or that of an innocent third party from an adversary whom one reasonably believes is threat- ening harm. If a person who meant no harm is hurt or killed, the individual who thought he was in grave peril has made a terrible mistake and can be held responsible for assault or murder. Five qualifi- cations within the law are intended to restrain vic- tims in order to discourage needless escalations of hostilities that can increase danger or imperil bystanders and to prevent tragic misunderstandings that can cause innocent people to be mistaken for dangerous offenders. First, the threat posed by an aggressor must be imminent. A frightened individ- ual may not use force if the would-be aggressor issues a conditional threat (“If I ever catch you, I’ll …”) or a future threat (“The next time I catch you I’ll …”). Second, if the assailant retreats, removing a victim from imminent danger, force may no longer be used. In some states, the intended target must try to evade a confrontation or attempt to escape before resorting to deadly force. Third, the target’s belief that harm is imminent must be reasonable. A reasonable person takes into account the size of the adversary, the time of day, the set- ting, the presence or absence of a weapon, and sim- ilar factors. Fourth, the degree of force the target uses to repel the attack must be in proportion to the threat of injury or death posed by the aggressor.
And fifth, the timing of the target’s action must be appropriate. A preemptive strike initiated before the presumed attacker makes his or her intentions known (too soon) is illegal. A retaliatory strike made after the clash is over (too late) also exceeds the limits of self-defense (see Austern, 1987; and Fletcher, 1988).
In every jurisdiction, the law permits law- abiding people to use deadly force to protect them- selves from serious bodily harm, and it spells out the circumstances under which victims of particular crimes can try to wound or kill their adversaries. For example, whether or not citizens are entitled by law to unleash deadly force to protect their homes and property varies substantially from state to state. In most jurisdictions, intruders guilty of forcible entries into dwellings can be shot. In some states, however, residents must be threatened or actually attacked before they can use lethal force against criminals who invade their homes. Trespas- sers generally are not considered to pose a grave peril and therefore cannot be shot on sight. Only a few states authorize private citizens to use some degree of physical force to safeguard their property from thieves (BJS, 1988).
A number of guidelines that suggest when vic- tims under attack can legally resort to deadly force in self-defense appear in Box 13.1.