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Criminal law


Being tried in a civil court may result in you having to give up money, property, or rights, but being tried in a criminal court may result in you having to give up your freedom and be confined for maybe your entire life or even having to give up your life. This article discusses some general information (not legal advice) about criminal law as it relates to self-defense.

    Assault and battery

    Most people have heard of the crime "assault and battery." Actually, assault and battery is two separate offenses: an assault (the threat to strike) and a battery (the actual strike).

    A battery is the intentional offensive touching of another person. It may be a punch to the chest or simply pointing a finger that touches the chest, but it must be intentional. Accidentally bumping into someone on the street is not intentional so, even though it may be inconsiderate, it is not a crime. A battery must be offensive; an attention-getting tap on the shoulder is not offensive, but a sharp blow on the shoulder because the person turned his or her back on you while you were yelling at them is offensive. Any touching, however minor, is a battery under the law if it is both intentional and offensive.

    Whereas a battery requires an actual touching, an assault only requires the threat of the offensive touching of another person. It is not illegal to raise one's arm with the hand in a fist. However, if the act is preceded by circumstances that would cause another person to believe reasonably that he/she is in danger of being punched, then an assault has been committed. As long as there is an overt act and the victim believes an attack is imminent, then assault is committed, even if someone prevents the assailant from attacking or the assailant decides not to attack. For example:

    Assume that I verbally threatened to take my knife out and cut and I reach into my pocket just as I step toward you. Although you cannot readily determine if I have a knife you are legally permitted to defend yourself on the assumption that I do have a knife since my statement and actions would convince any reasonable person that I have a knife and I intend to commit bodily injury to them. Even if I am bluffing, you have acted justifiably if you defend yourself.
    A state may charge a person with either an assault or a battery. However, since an assault must logically precede a battery, many states call a battery an "assault and battery."

    Just as in the old children's saying, "Sticks and stones may break my bones, but words will never hurt me," mere words, no matter how offensive, usually do not constitute an attack to which you may physically defend yourself. A few states do permit a defense against offensive words if they are used against a woman.

    The law classifies assault and battery offenses as either misdemeanors or felonies. Misdemeanor offenses, such as a fistfight, are minor crimes for which the maximum punishment is one year in jail. Felony offenses, such as assault with a deadly weapon, are serious crimes for which the maximum punishment is one or more years in prison. Felonious assault and batteries are usually committed during the commission of another serious crime, with the use of a dangerous weapon, by several perpetrators, or with the intent to cause serious bodily injury.

    Since the courts are overrun with serious criminal cases, in simple assault and batteries where there is no serious injury, unless the victim signs a complaint and vigorously pursues a criminal prosecution, most district attorneys will decline to prosecute the cases. If one wishes to seek a legal remedy to a simple assault and battery, the best avenue is usually to sue in the civil law courts.


    Use of force

    Laws may authorize the use of physical force under certain circumstances, but they do not mandate the use of force and the decision to use force lies solely with the user. Most state laws provide for the use of physical force in the protection of three things: people, Real property (land or structures), and personal property under four circumstances:
    • To prevent an illegal act from occurring.
    • To stop an illegal act already in progress.
    • To arrest or take the perpetrator of an illegal act into custody.
    • To prevent a perpetrator from escaping from custody.
    When force is used, the courts will consider:
    • Under the circumstances, was the use of physical force necessary?
    • Under the circumstances, was the amount of the force used necessary?
    • Under the circumstances, did the use of force endanger innocent people?
    Most laws include special circumstances in which the use of physical force is specifically authorized. Some of these circumstances may include:
    • The lesser of two evils. You can use physical force if it will result in less injury than if you fail to use force. For example, you see a woman on the ground with a man straddling her and punching her in the face and you kick the man off the woman.
    • Duty of care. A parent, guardian, or person entrusted with the care and supervision of a minor for a special purpose may use reasonable physical force to maintain discipline or to promote the welfare of such minor.
    • Corrections officers. Officials of a jail, prison, or correctional institution may use physical force to maintain order and discipline as authorized by corrections law.
    • Maintaining order. A person responsible for maintaining order on a common carrier, such as a bus driver, train conductor, or airline crew member, may use physical force when necessary to maintain order and may use deadly physical force if necessary to prevent death or serious physical injury. This also applies to any private citizen designated by such a person to assist in maintaining order.
    • Protect life. Anyone acting under the reasonable belief that another person is about to commit suicide or inflict serious physical injury upon himself may use physical force to prevent the suicide or the self-inflicted serious injury.
    • Medical necessity. A licensed physician or person acting under his or her direction to administer a recognized form of treatment with the consent of the patient, or his or her parent or guardian, may use physical force., However, the person may still face civil liability. Consent is not required in emergencies where failure to act would result in greater injury to the patient. 

    Courts frown on the use of force

    Courts recognize the right of persons to protect themselves or others from physical attack, but they frown upon the use of force, even when used for self-defense since it is a breach of the peace. Anyone who uses force against another person, even for self-defense, must be prepared to justify the necessity for the violence. Allowing one to use force to defend himself or herself in a self-defense situation is a privilege that permits one to do something that would otherwise be illegal. 

    In many cases, the need to use force will be obvious from the circumstance of the attack. However, if there are any questions about the use of force, the burden will be on the person using the force to justify its use, especially if there were non-violent alternatives available. In a self-defense situation, a martial artist must be concerned with whether the use of force is reasonable under the circumstance and how much force is legally justifiable.

    In 1987, In the case of Martin vs. Ohio, the U.S. Supreme Court ruled that due process did not forbid placing the burden of proving self-defense on the defendant. So, in effect, the burden of proof shifts from the prosecution to the defendant in cases of self-defense. It also means that to convict, a jury does not necessarily have to believe that the defendant's behavior was unjustified.

    When to use force

    The use of force must be reasonable under the circumstances. Generally, force is reasonable when an offensive attack is imminent. One does not have to wait until an assailant strikes or even attempts to strike. Once the assailant demonstrates a clear intent to attack, coupled with an overt physical threat, one may defend. For example, if a person threatens to punch and cocks his/her fist to carry out the threat, you may begin your defense.

    Amount of force

    Most legal problems in a self-defense situation involve the amount of force used during the defense. The amount of force must be reasonable under the circumstances. Courts will consider what a reasonable and prudent person might have done under the same or similar circumstances. This means that a person's fear, confusion, and excitement will be considered to the degree that such emotions may reasonably be expected to influence one's behavior. For a trained martial artist, this can be a problem since martial artists pride themselves in the control of their techniques and their emotions.

    What is reasonable force

    The issue of what is reasonable is often difficult for the courts to decide. What is reasonable in one circumstance may be unreasonable under another circumstance. Therefore, most states delineate certain circumstances when deadly force may be reasonable, such as when the attack is aggravated by the use of a deadly weapon or by there being multiple assailants. When one is in fear of losing his or her life or sustaining serious bodily injury, the courts may judge killing the assailant as a reasonable force. In circumstances where the attack is only a misdemeanor attack, the law does not permit a person to use deadly force or seriously injure the assailant. 


    Who may defend?

    As explained above, the law permits a person to defend him/herself, but a person may also defend another person or persons. The other persons may be family, loved ones, friends, or even strangers. Most states permit a person to defend another person with all the force that the other person would reasonably be allowed to use in his or her defense.

    One may justifiably intervene in defense of any person who is in actual or apparent imminent danger of death or serious bodily harm, and in so doing he or she may use such force as he or she has reason to believe, and does believe, necessary under the circumstances. 

    The defender must be reasonable in his/her belief that the third party is in dire peril of death or serious bodily harm. The defender must also have a reasonable basis to believe that the force he/she uses is necessary to protect the apparent victim from the threatened harm. The defender has the burden of proving to jurors that he/she inflicted the injuries complained of while acting in defense of the third party within the foregoing principles.

    Defending the wrong person

    One must be very careful in coming to the defense of another person; one may be aiding the wrong person. The person seen striking another may be the victim who is only defending him or herself. 

    Unless it is obvious who the victim is, or you are positive who the victim is, you must be careful before getting involved in a confrontation. For example, when you see two people fighting, how are you going to know who is the victim? Your first impression might be that a man is beating up another, so you come to the defense of the man getting the worst of it. Then you find out, after you are in jail, that the man winning the fight was an off-duty policeman arresting a dangerous criminal and you interfered with the officer in the performance of his duty. If you assist the wrong person, the courts will be sympathetic as long as you used a reasonable interpretation of the circumstances at the time you acted. If it was a reasonable error and no one was seriously injured, the law may excuse your error.

    Defense of property

    Generally, where only property is involved and the offender makes no threat against a person, the use of force is not justified. If a person approaches you and demands your wallet, but makes no threats whatsoever, you may refuse the request, but you may not use force against the person. Remember there must be the threat of force and/or an overt action of force. In general, the law does not view property as important enough to justify the use of force to protect or regain it. An exception to this general rule is "hot pursuit."  
    If you witness the theft of your property and make a "hot pursuit" to recover it, you may use minimal force to recover the property, but you may not cause serious injury. If the thief responds with force, you may use a reasonable amount of force to defend yourself, but you must end the confrontation as soon as possible. If your pursuit is not immediate or you did not see the actual theft, then the "hot pursuit" justification no longer applies.

    Defense of home

    To the law, your home is your castle; it is your place of last retreat. You are not required to retreat from a threat in your home. When defending your home against burglary, authorities rarely question the use of force, even deadly force. The legal definition of burglary is:
    • The breaking and entering,
    • without consent,
    • of the dwelling house of another,
    • while it is occupied,
    • at night,
    • with the intent to commit any felony or larceny therein.
    If you believe a burglar is a serious physical threat to you or your family, the law allows you to use whatever force you feel is necessary to neutralize the threat. However, here again, one must be careful since not all intruders are burglars. Wildly shooting at anyone who trespasses on your property is not reasonable self-defense. Someone may be intoxicated and enter the wrong apartment. A daughter’s boyfriend may be sneaking in a window to meet her. A neighbor may be trying to break-in to warn you of a fire in your home. If the mistaken use force is reasonable under the circumstance and no one is seriously injured, the law will generally excuse the action. However, remember that the victim may still pursue you in civil court.

    Use of force in home defense:

    • The use of force is justifiable only if the actor first requests the intruder to desist from his interference with the property unless the actor reasonably believes that:
    • Such a request would be useless,
    • It would be dangerous to the actor or another person to make the request, or
    • Substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.
    • The use of deadly force is not justifiable in the defense of premises unless the actor reasonably believes that:
    • The person against whom the force is used is attempting to dispossess the actor of his or her dwelling otherwise than under a claim of right to its possession; or
    • The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other criminal theft or property destruction; except that
    • Deadly force does not become justifiable in either case unless:
    • The person against whom it is used has used or threatened deadly force against, or in the presence of the actor or
    • The use of force other than deadly force to prevent the commission or consummation of the crime would expose the actor, or another in his/her presence, to substantial danger of serious bodily harm.
    These are defenses to criminal charges which will be brought against you if you defended yourself. Even if the police or the prosecutor decides not to bring criminal charges against you or if you are successful in proving that you were protecting yourself as permitted under certain provisions of the criminal code, the attacker, if injured, still may attempt to bring a civil suit to recover for any medical expenses or injuries incurred.


    Trespass occurs when a person enters a property without permission or refuses to leave after permission is withdrawn and a person responsible for the property makes a clear request to the person to leave. If the person does not leave, he or she is considered a trespasser. As such, you may use minimal force to eject the trespasser, but you may not cause serious injury. The proper response to a trespasser is to notify the police. However, if the trespasser violently enters your property, you need not request him or her to leave before using reasonable force to eject the trespasser.

    The use of force upon or toward the trespasser is justifiable when the actor is in possession or control of the premises or is licensed or privileged to be thereon and he or she reasonably believes such force is necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission of criminal trespass by such other person in or upon such premises. A person commits criminal trespass if, knowing that he or she is not licensed or privileged to do so, enters or surreptitiously remains in any structure or separately secured or occupied portion thereof.

    Do not assume every trespasser is a burglar. A problem arises when a trespasser is on your property and you believe the trespasser may try to break and enter your home, but he or she has not yet attempted to do so. You cannot legally treat the trespasser as a burglar until he or she at least attempts to break and enter. 

    On the other hand, if you treat the person as a simple trespasser, you may place yourself or your family in more danger than if you treat the person as a burglar. This is a judgment call that hopefully, you will never face. If this situation does occur, the law will likely excuse your use of greater force than necessary if the trespasser was planning to commit burglary. Such things as the person wearing a mask or carrying burglary tools may help prove this. However, if the intruder was merely a simple trespasser, authorities may prosecute you if you used excessive force.

    In some states, a person, who is not a trespasser, need not retreat from an assailant if he or she truly fears death or serious bodily harm. It is assumed that the assailant is the person who initiated the attack without any provocation on the part of the defender. In either case, a martial artist should always do everything possible to avoid a confrontation. If a person enters a violent self-defense situation he or she could have reasonably avoided, the courts may hold the person legally responsible.


    In October 2005, Florida's "stand your ground" law took effect. The law states that people do not have to retreat in the face of a threat as long as they are in a place they have a legal right to be, including public streets or their places of business. They may "stand their ground" and use force, even using deadly force including a firearm, if necessary. The law also gives immunity from criminal or civil charges as long as the person you used force against was not a police officer.

    In September 2005, in the case of State vs. Duff, the North Carolina Court of Appeals ruled that bare hands, fists, or feet are not dangerous weapons. So, in North Carolina, if you use your hands and feet to defend yourself or even attack another person, you will not be charged with using a dangerous weapon, even if you are a martial arts black belt, although your actions may still be considered unreasonable under the circumstances.

    When two persons mutually agree to enter a fight, both lose the legal protections of self-defense. In most states, if the fight occurs in public, both persons may be guilty of an affray or a breach of the peace.

    Martial artist are held to a higher standard

    Martial artists are especially susceptible to exceeding the bounds of reasonable force in self-defense situations. They diligently train many years to react instinctively to an attack. The problem occurs when the instinctive reaction is excessive under the circumstances. In this respect, martial arts training may become a liability during a self-defense situation since the courts may expect a trained martial artist to be in more control of his or her actions than an ordinary citizen. The courts may view a martial artist’s excessive force as merely taking advantage of a self-defense situation as an excuse to practice techniques learned in class.

    If a martial artist instructor only teaches techniques for severely injuring or maiming an opponent, the students should question the quality and practicality of the instruction. Mastering a martial art means your being able to react to any type of situation with the appropriate level of force. Training that emphasizes only severe injury ignores the law and the ethics of most martial arts.

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