Wednesday, July 20, 2011

Mind the Gap - Part V - The Law - a follow up

It was fairly challenging to write a single post that would capture how the law looks at self defense.  The content applied to the laws of several countries, and as such, hit mainly on the commonalities of the law and advice to keep you, the reader, safe and in a strong legal position.

John Coles left the following comments on my post on the law.  I've decided to respond to his concerns and comments in this post.  John's comments are in italics and I'll follow in bolded regular text.

"When you defend yourself against another person, you are assaulting that person. The law is based on assuming that is an illegal act, but then provides a defence against that act - self defence.

Most laws regarding assaults include the following elements - (1) the deliberate application of force to another, (2) directly or indirectly, (3) without their consent.  Self defense techniques therefore do fit John's point.  You are assaulting the person, but self defense is an area in law that justifies that use of force, exempting you from criminal liability, as long as it was reasonable.

Your point #2 needs clarification. You can use as much force as necessary to defend yourself - but no more. The law is about proportionality. However, humans have evolved to over react. In evolutionary terms, if you entire destroy the threat or do enough simply to nullify it, they are one and the same. For evolution, make sure and ensure the survival of the species - over react and destroy the threat outofsight. This then brings evolved behavioural patterns into conflict with modern law.

You can use as much force as necessary to defend yourself - but no more.  I stand by my comment as it is correct.  Perhaps for clarification, I could have said that you can use the minimum amount of force as is necessary to defend yourself.  I didn't choose this wording as I feared it could confuse the matter as the minimum amount of force will vary for each situation and for each person, based on the totality of the circumstances.  

From an evolutionary perspective, there may be a more basic animal reaction in some, but I doubt that most people would resort to shooting someone in the head if they shoved them to ensure the survival of the species.  I don't necessarily disagree with John's point, but I'm referring to getting out of a dangerous situation intact, where there is a degree of evolved thought.

Pre-emptive 'attacks' to defend oneself. You have a legal problem there. You assaulted another person. You need to find a defence. Given the legal system is based on legislated law and precedent, you need to find a legistlated law or precedent that supports your case. Given the person did not attack you, that often becomes problematic. How many women have been jailed for killing their abusers when their abusers were not actually attacking them at the time?

You may have a problem with pre-emptive attacks, you may not.  Yes, you've completed the essential components of how an assault is defined.  There is a fairly significant body of case law, or precedent which supports some pre-emptive action.  There are a couple of areas that need to be factored in to the discussion.  When did the assault begin?  If someone is advancing on you with the intent and ability to hurt you, in my opinion, the assault has begun.  You also must understand that each situation would be examined on a case by case basis, which must factor in all the circumstances of the event.  Who are you?  What did you perceive?  Who was your attacker?  Where were you?  Were there weapons?  Drugs?  Alcohol?  The list goes on and on.  

You will have to explain yourself, but again, you are likely going to be successful if your only motivation was to get away to safety, not to hurt or punish your opponent.

As for the domestic abuser comments. There have been women who have been sent to jail for killing their abusers when they weren't actively being attacked, but there are also ones who have been found not guilty due to the history and all the circumstances surrounding the abuse and the individuals.

Here is a question that may intrigue. If you punch someone in the street, that is an assault and you'll be arrested for it. Why is it any different when you do it in a class or a tournament? Why is it any different when a football player (Aussie Rules of course) punches an opposing football player? Why aren't F1 drivers arrested for assault when they attack each other, or soccer players, basketball players, etc. when they engage in fisticuffs in their sports?

The answer is important for the teaching of marital arts."

Sports violence is an interesting side issue.  The reason that a certain degree of violence is tolerated in martial arts or sports is due to the issue of consent.  One of the elements of proving an assault is that the force applied was without the other person's consent.  If two sports players basically 'agree' to fight, it's sometimes ok.  Having said that, there's an important caveat.  The law states that you cannot consent to major or serious injury.  That's why sports figures who seriously injure the other player often face criminal charges, especially if it's a 'sneak attack'. 

It is an interesting area in law, and martial artists should understand how it applies to their study.

I thank John for his comments on my post.  I welcome any other questions or comments on the topic.

Also, please be advised that John has just launched a new blog on The School of Jan de Jong.  Check it out.


  1. Good post. This is what the martial arts needs more of. Constructive, informed debate. You are dead right regarding the violence tolerated in sport, and even in martial arts training. In Australia it's called the 'doctrine of consent'. And that doesn't mean you have to explicitly consent, there can be implied consent. And we need to be aware of the limits of that consent.
    I've commented on SueC's post regarding the difficult issue of perception for the law. And remember, the law is suppose to reflect the communities expecations. A person who has experienced assault, sexual or otherwise, may have a different perception of a situation than a 'reasonable person'. The may overreact when their actions are compared to those of a 'reasonable person'. That is a fair assessment. Should that person be given wider latitude because of thier history? These are difficult issues that the law has to actually contend with. We can voice opinions, but the law has to address these issues with consequences that affect lives. And they don't have the opportunity of saying 'it's all too hard' - which it is. ... Fascinating subject nonetheless.

  2. Thanks John, I enjoyed the debate, or discussion.

    In some sports, signing up to play is part of the implied consent, but you are correct, it has limits.

    Perception in law is definitely an interesting and challenging area. The "reasonable person" test is fairly common in law, but it can be just as challenging to define that. What is reasonable to me may vary significantly from what is reasonable to you.

    A person who has experienced an attack may overreact or react more strongly that someone who hasn't. This should, and does, play a factor in determining if there is any criminal culpability. This must be carefully weighed against, or alongside, ALL the other factors involved. As I commented on Sue's same post, every situation must be examined based on the totality of all the circumstances. Individual perception is one of these factors. Thanks for the comments.