Krav Maga Boston | The Law & Self-Defense

The Law & Self-Defense

Articles On The Legal Aspects of Self-Defense

Legal Aspects of Self-Defense

Many people when they talk about learning self-defense, are of the opinion that there are certain techniques, which are legally permissible, and other that aren’t. However, this isn’t what self-defense is. Self-defense is about using violence – in potentially a number of different ways – in order to physically defend yourself. This might involve striking somebody pre-emptively, overwhelming them with multiple strikes and/or throwing them to the ground. The law does however require certain conditions to be met in order for such actions to be judged “legal”. Making a claim of self-defense is an admittal of guilt to breaking the law regarding the use of violence against another person(s) but that you did so out of necessity, because you feared for your own safety. It is worth remembering that if you make a claim of self-defense you are admitting to using violence. For a successful claim of self-defense to be met you must demonstrate the following:

1. Innocence
2. Imminence
3. Proportionality/Nullification
4. Avoidance

Innocence means that you didn’t start/initiate the conflict. This doesn’t necessarily mean that you didn’t throw the first punch or strike, because you do have the right to do that, but rather you weren’t the originator of the physical confrontation i.e., you aren’t guilty of assault. This can be a tricky one to prove because often physical confrontations have many segments to them, and it can be hard to judge when the fight itself started. This is why it’s important to have a good understanding as to what constitutes “assault”, as this is often where the fight is judged to have started. Assault comprises of two components: you have to fear for your safety (and from a legal perspective, demonstrate this), and your aggressor has to be in a position where they can commit battery; battery being unwanted touching. This is why a good first step when dealing with an aggressor is to step back, and put your hands up i.e., you are deliberately trying to move to a position where you are not capable of battery, and your hands being up are an indication of your fear. If the other person now steps forward, to a position where they can touch you then it’s easy to demonstrate your innocence, and their assault.

You must also be able to demonstrate, imminence i.e., that you were in imminent danger, that you were about to be attacked right now. This means you had no opportunity to leave and/or call for help etc. Somebody, threatening to “get you”, at a later date, from across the street, doesn’t put you in immediate danger, and so you don’t have the right to respond physically. If you are in imminent danger then you need to respond proportionally i.e., with enough force to nullify their attack, or to put it enough way the force you use must be proportionate to their force e.g., if you keep punching someone after they have turned away and gone fetal, then you are using excessive force – and you are no longer in imminent danger (this is how “roles” can sometimes switch in a fight, and you can lose a claim of self-defense).

Some US States have “stand your ground” laws whilst others – including Massachusetts - have a “duty to retreat”. It is usually safer both physically and legally to try and avoid a physical confrontation, and if you have an option to walk away and avoid an aggressive interaction you should try and take it. It is worth knowing that you aren’t required in any state to make an “unsafe retreat” e.g., if avoiding a confrontation involved walking into traffic you wouldn’t have to prove avoidance in a state with a duty to retreat.

Another element is that of "reasonableness", and this covers and applies to the other four e.g., was your use of force reasonable in the situation? You may not have stopped punching your aggressor the exact moment that they started to turn away and curl up, but you quickly stopped when you realized they were no longer attacking you. In that moment scared, stressed, and adrenalized, your actions would probably be judged reasonable, even though “on paper” they may not have been proportionate.

Rather than try and work these things out in the moment, have a few basic rules you follow that put you on a sound legal footing e.g., try to walk away (make your retreat), at the earliest opportunity, step back and put your hands up (have an action that demonstrates you feared for your safety), and look to disengage from the physical confrontation at the earliest opportunity.

References

Akande, D. and Liefländer, T. (2013). Clarifying necessity, imminence, and proportionality in the law of self-defense. American Journal of International Law, 107(3), pp.563-570.

Cotton, M. (2015). The Necessity Defense and the Moral Limits of Law. New Criminal Law Review, 18(1), pp.35-70.

Ferzan, K. (2005). Justifying Self-Defense. Law and Philosophy, 24(6), 711-749.