Self-Defense as a Defense in a Military Court-Martial

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The defense of accident is defined by R.C.M. 916(f).

“Preventive Self-Defense” in which no injury is inflicted. If no battery is committed, but the accused’s acts constitute assault by offer, the accused may threaten the victim with any degree of force, provided only that the accused honestly and reasonably believes that the victim is about to commit a battery upon him. R.C.M. 916(e)(2). In the case of the United States v. Acosta-Vargas, 32 C.M.R. 388 (C.M.A. 1962); In the case of the United States v. Johnson, 25 C.M.R. 554 A.C.M.R. 1958); In the case of the United States v. Lett, 9 M.J. 602 (A.F.C.M.R. 1980). See generally Benchbook paragraph 5-2-5.

Legal Defenses Available in a Military Court-Martial

Crimes in which an injury is inflicted upon the victim. Two separate standards of self-defense exist depending on the nature of the injury inflicted on the victim. In the case of the United States v. Thomas, 11 M.J. 315 (C.M.A. 1981); In the case of the United States v. Sawyer, 4 M.J. 64 (C.M.A. 1977); In the case of the United States v. Jackson, 36 C.M.R. 101 (C.M.A. 1966).

Standard applied when homicide or aggravated assault is charged. The accused may justifiably inflict death or grievous bodily harm upon another if:

He apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted on him; and

He believed that the force he used was necessary to prevent death or grievous bodily harm.

Mistake of Fact as a Defense in Sexual Assault Cases

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See In the case of the United States v. Clayborne, 7 M.J. 528 (A.C.M.R. 1979) (court set aside a conviction for unpremeditated murder because it “was not convinced beyond a reasonable doubt that the accused did not act in self-defense” in using a knife against a victim who attacked the accused with only his hands when the accused knew 1) the victim was an experienced boxer, 2) with a reputation for fighting anyone, 3) who had defeated three men in a street fight, and 4) had choked and beaten a sleeping soldier once before). But see In the case of the United States v. Ratliff, 49 C.M.R. 775 (A.C.M.R. 1975) (reaching opposite result in a knife scenario). R.C.M. 916(e)(3). Standard applied when simple assault or battery is charged. The accused may justifiably inflict injury short of death or grievous bodily harm if:

He apprehended, upon reasonable grounds, that bodily harm was about to be inflicted on him, and he believed that the force he used was necessary to avoid that harm, but that the force actually used was not reasonably likely to result in death or grievous bodily harm. See In the case of the United States v. Jones, 3 M.J. 279 (C.M.A. 1977) (one may respond to a simple fistic assault with similar force); In the case of the United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966).

Loss of Self-Defense by Aggressor / Mutual Combatant. A provoker, aggressor, or one who voluntarily engages in a mutual affray is not entitled to act in self defense unless he first withdraws in good faith and indicates his desire for peace. R.C.M. 916(e)(4). In the case of the United States v. Marbury, 50 M.J. 526 (Army Ct. Crim. App. 1999) aff’d 56 M.J. 12 (C.A.A.F. 2001) (after the victim struck the accused in the face, the accused retreated from her room, unsuccessfully sought assistance from fellow NCOs, grabbed a knife, reentered her room, and then started a confrontation by threatening the victim with the knife). In the case of the United States v. Brown, 33 C.M.R. 17 (C.M.A. 1963); In the case of the United States v. O’Neal, 36 C.M.R. 189 (C.M.A. 1966); In the case of the United States v. Green, 33 C.M.R. 77 (C.M.A. 1963).

Retreat / Withdrawal. The accused is not required to retreat when he is at a place where he has a right to be. The presence or absence of an opportunity to withdraw safely, however, may be a factor in deciding whether the accused had a reasonable belief that bodily harm was about to be inflicted upon him. R.C.M. 916(e)(4) (discussion); In the case of the United States v. Lincoln, 38 C.M.R. 128 (C.M.A. 1967); In the case of the United States v. Smith, 33 C.M.R. 3 (C.M.A. 1963); In the case of the United States v. Adams, 18 C.M.R. 187 (C.M.A. 1955); In the case of the United States v. Jenkins, 59 M.J. 893 (A. Ct. Crim. App. 2004) (holding when an aggressor, provoker, or mutual combatant who becomes unconscious and ceases resistance effectively withdraws, entitling another to exercise self-defense on his behalf).

Escalation. An accused who wrongfully engages in a simple assault and battery may have a right to use deadly force if the victim first uses deadly force upon the accused. In the case of the United States v. Cardwell, 15 M.J. 124 (C.M.A. 1983); In the case of the United States v. Dearing, 63 M.J. 478 (2006) (citing Cardwell); In the case of the United States v. Lewis, 65 M.J. 85 (2007); see In the case of the United States v. Winston, 27 M.J. 618 (A.C.M.R. 1988) (self-defense not raised where the accused aggressively participated in an escalating mutual affray);

Termination of Self-Defense. The right to self-defense ceases when the threat is removed. In the case of the United States v. Richey, 20 M.J. 251 (C.M.A. 1985) (ejecting a trespasser).

Voluntary Intoxication. The accused’s voluntary intoxication cannot be considered in determining accused’s perception of the potential threat which led him to believe that a battery was about to be inflicted, as this is measured objectively. In the case of the United States v. Judkins, 34 C.M.R. 232 (C.M.A. 1964).

Requirement to Raise. Self-defense need not be raised by the accused’s testimony, even if he testifies. In the case of the United States v. Rose, 28 M.J. 132 (C.M.A. 1989); see TJAGSA Practice Note, Self-Defense Need Not Be Raised by the Accused’s Testimony, ARMY LAW., Aug. 1989, at 40 (discusses Rose). See In the case of the United States v. Reid, 32 M.J. 146 (C.M.A. 1991).

The “Egg-Shell” Victim. R.C.M. 916(e)(3) (discussion). If an accused is lawfully acting in self-defense and using less force than is likely to cause death or grievous bodily harm, the death of the victim does not deprive the accused of the defense, if:

  • The accused’s use of force was not disproportionate, and
  • The death was unintended, and
  • The death was not a reasonably foreseeable consequence. In the case of the United States v. Jones, 3 M.J. 279 (C.M.A. 1977).

Self Defense Laws In The United States

A self-defense claim is a common rule in situations where a person defends himself, but the level of violence a person may use is complicated. A defendant invoking self-defense must admit that he or she used force against a victim of violence, but must also claim that he or she was the victim and not the attacker, that he or she did so to protect someone else from injury, and that the level of violence they used was proportional to the threat.

Some states have self-defense laws that allow people to defend themselves or others who are threatened with reasonable force to avoid criminal liability for their use of force. Each state has its own rules on when and how to use force in self-defense and whether the user can be made within the limits of these laws without leading to a criminal conviction. Such laws may apply in states where, when a person is attacked in a public place, he or she has the right to stand until the ground or force is struck.

Standing-your-ground laws (also known as withdrawal obligations) are legal justifications for a person to assert himself and to use force or withdrawal to protect or defend himself or others from a threat or perceived threat. A “stand your ground” law means that a person can use force, normally referred to as lethal force, to defend himself or to try to retreat from imminent danger.

An emergency law allows someone to use deadly force in public if they know that they can avoid the need for violence by walking away from the incident without retreating. Stand-Your-Ground enables individuals to defend themselves by force if necessary against an immediate threat of serious bodily harm or death.

American self-defense laws largely require that the defendant has the right to withdraw to protect his or her safety, to avoid harm or injury, without resorting to force. Under these laws, people have a duty to retreat or use lethal force in self-defense when they are physically present at a place. These laws require a person to deescalate the situation in a clear and safe manner, but they do not require a person to attempt to do so unless it would put him or her at risk.

An exception arose as an exception to the disengagement requirement in the United States, but it turned out to be a much broader set of ideas about who can fight.

A time-honored legal principle codified in US self-defense laws states that people have the right to use reasonable physical force to defend themselves and others from imminent violence.

Self-defense laws in the US justify the use of lethal force in situations where it is reasonable for them to think that lethal force is necessary to prevent imminent death or disproportionate bodily harm to another person or person. Stand-your-ground laws, also known as line-in-the-sand laws, permit people to use lethal force if they deem it necessary to defend themselves against grievous bodily harm, kidnapping, rape and robbery, and other serious crimes, and have the right to self-defense. These laws also extend to people who use lethal force in self-defense when they try to retreat.

Since the 1980s, there have been a handful of state laws, nicknamed ” Make My Day,” that provide immunity from prosecution for the use of deadly force on entry into a home. Under these laws, 25 states provide for a duty of withdrawal if the attacker is in a place where no one is present.

The common law principle of the castle doctrine states that individuals have the right to use appropriate force, including lethal force to defend themselves from intrusions in their homes. The doctrine means that homeowners can claim self-defense in some states who use deadly force in their homes, businesses, or cars in the event of egregious bodily harm or death. Some states require a person to retreat when there is an imminent danger to his life to defend himself or to use lethal force when someone enters his home.

In California, there are no specific “stand your ground” laws, but in California, the castle doctrine means that a person can use deadly force on himself or herself if he or she has a reasonable fear of imminent danger of immense bodily harm. Castle Doctrine and Stand Your Ground laws provide a legal defense for a person charged with various violent crimes against another person, such as murder, manslaughter, grievous bodily harm, illegal discharge or carrying a weapon, or attempting to commit such crimes.

Certain initiatives to expand self-defense laws raised serious concerns from a human rights perspective since the “stand your ground” laws allow the use of deadly force despite the existence of safe retreats. Several states have enacted “heinous shoot-first” laws, which permit, among other things, the use of deadly force when a property crime committed by a fugitive is committed.

By lowering the threshold for the justifiable use of lethal force for self-protection, robust laws can increase the use of defensive weapons, and the deterrent effect is to reduce crime and violence rates. The more likely it is to be confronted with a citizen who is willing to use a firearm, the more laws can encourage criminals to carry firearms and increase the proportion of violent and property crimes involving firearms. They can also reduce the likely legal costs of using defensive weapons by reducing the likelihood that they will be held criminally or civilly liable for lethal or non-lethal injuries.

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