Unit 33: Self-Defense II


  • Dressler 225-242

  • Wanrow (CP)

  • Norman I (CP)

  • Norman II (CP)

Key Terms: 

  • reasonable person

  • battered woman syndrome


One of the most important questions in adjudicating a self-defense claim is whether the defendant’s actions or beliefs were reasonable.  Should a reasonableness assessment account for a defendant who was a victim of past criminal attacks? Should it consider familiarity with a particular setting or location? Should it consider race, gender, height, weight, age, social status? Subjectivizing the “reasonable person” standard has some appeal. Our expectations of what is reasonable for a petite older woman who weighs 95 pounds should be different from what we expect from a young man who weighs 200 pounds and has advanced self-defense training. However, there is a danger to over-subjectivizing the standard: should the law consider the “reasonable racist,” or the “reasonable person with explosive anger issues”?

Although there are no clear answers to these questions, most courts have come to a general consensus on at least some important matters. Courts generally refuse to subjectivize the “reasonable person” standard completely. But they are often willing to consider the actor’s “situation,” which includes the circumstances surrounding the specific instance, plus any past experience the actor has had with the alleged aggressor, or other experiences that would reasonably influence the actor’s understanding or expectation of the circumstances.  This approach allows courts to weigh relevant subjective factors. However, such a test will necessarily have some ambiguities, and be highly fact-sensitive. 

Battered Woman Syndrome

Sometimes in abusive relationships, an abused or battered spouse or partner will kill the abuser. Often, the abused party will try to argue self-defense and introduce evidence about the effects of battered woman (or spouse) syndrome. There are typically three patterns of homicide in which this defense arises, listed from most to least common: (1) the “confrontational,” where the homicide occurs during an incident of domestic violence; (2) the “non-confrontational,” where the homicide occurs during a lull in domestic violence (including while the abusive spouse is asleep); and (3) situations in which the battered spouse asks or hires someone else to do the killing. Defendants have raised a battered spouse syndrome defense in all three situations.

Battered spouse syndrome is widely accepted as a real phenomenon, and evidence of previous battering can be extremely important in cases where the batterer is exhibiting behavior that typically precludes a battering incident but is not currently engaged in overtly violent behavior. However, jurisdictions vary as to the extent that they will permit testimony of this nature. A self-defense claim is almost always available during a confrontational homicide. Courts are split on whether a battered spouse should have access to the defense in non-confrontational homicides, though the majority of courts say no. Self-defense claims have never been successful in the last case, when a third party is recruited to commit the homicide.

In some cases, the cycle of abuse and psychological trauma inflicted on the spouse results in the spouse suffering from low self-esteem and a “learned helplessness” – a sense of inability to leave or function independently, which makes escape practically impossible. Evidence of learned helplessness can be extremely valuable in making a defense in a non-confrontational homicide case, because it explains why the defendant viewed homicide as the only available escape. Since learned helplessness (and battered spouse syndrome in general) reflects a diminished capacity to rationally reflect on risk, some legal scholars have argued that a battered spouse defense should be seen as an excuse rather than a justification, or as an imperfect self-defense claim – especially in non-confrontational homicides.

 Other Considerations

Difficulties can arise when someone, acting lawfully in self-defense, accidentally injures or kills an innocent bystander. Although courts are not entirely in agreement, the majority of courts allow a self-defense claim to transfer (similar to transferred intent), freeing the defendant from criminal liability. This is not without limits, however – the defendant must is still required to act reasonably, and with proper care to avoid harming bystanders.

Historically, an individual faced with an illegal arrest was justified in using any reasonably necessary non-deadly force to resist the arrest. The use of deadly force in such a situation was considered an imperfect self-defense, and charged as manslaughter rather than murder. This rule has survived to the present when the arrest is illegal because of the use of excessive force, but has been variously limited when the illegality results from a separate defect.

Model Penal Code

The Model Penal Code treats self-defense similarly to common law approaches, with two important differences. First, MPC 3.04 replaces “imminence” language with a requirement that the force be “immediately necessary” to protect against unlawful force being used “on the present occasion.” This change in language shifts the focus from imminence to necessity, which permits more preemptive self-defense claims than allowed under common law.

The second major difference is that MPC 3.04 lacks a reasonableness requirement for self-defense (that is, self-defense is framed entirely in terms of the defendant’s subjective belief). However, MPC 3.04 is subject to MPC 3.09(2), which states that if a defendant is reckless or negligent in regard to the facts of a defense and such negligence or recklessness is sufficient to establish guilt for the charged offense, then the defense becomes unavailable. So, for example, if a defendant negligently targeted the wrong individual while acting in self-defense, then he would be guilty of an offense for which negligence is a sufficient mental state to establish guilt, but not of an offense for which recklessness or higher was required.

The Model Penal Code only permits the use of deadly force when such force is necessary to protect against death, serious bodily injury, rape, or kidnapping. The MPC defines deadly force as force used by an actor, knowing or with the intent that it cause death or serious bodily injury. The MPC limits the availability of self-defense claims to aggressors, but allows a complete self-defense claim if the initial non-aggressor escalated the conflict to a deadly level. The MPC does not allow a self-defense claim if the defendant knew of a safe, non-violent retreat option. Retreat is not required from the home or office unless the actor was the initial aggressor and wishes to regain a right of self-defense, or if the initial aggressor was a co-worker at the defendant’s place of work. If an innocent bystander is injured or killed by the lawful use of force in self-defense, the defendant may apply a self-defense claim as long as he did not behave negligently or recklessly in his use of force.


Questions for Review:

Q1: Luke and Kirk strongly dislike each other, and have been involved in increasingly violent altercations that ultimately resulted in Luke going to prison based on Kirk’s testimony. A few days after Luke was released, Kirk receives an anonymous letter that threatens, “The next time you see me I will kill you.” Later that day, while Kirk is out to dinner, Luke walks into the restaurant wearing a trench coat, and starts walking toward Kirk. Kirk panics, pulls out his gun, and shoots at Luke. Kirk misses and hits an innocent bystander. Luke panics in turn, grabs a steak knife off a nearby table, and lunges at Kirk. Kirk shoots again, this time killing Luke. It is later revealed that Luke was approaching Kirk to apologize about their history. The letter was written by someone else as a cruel practical joke. Under the common law, is Kirk entitled to a self-defense claim for shooting Luke? For shooting the bystander? Explain.  How would your analysis change in a jurisdiction that follows the Model Penal Code?

Q2: Erin is a big believer in the importance of being prepared. About two years ago her home was broken into and robbed while she was present, and Erin vowed to never be caught off guard again. Because she is a relatively small woman – about 5 feet tall, and just over 100 pounds – she always goes out with tools for self-defense. One night while she is walking home, a large man – about 6’2”, 200+ pounds – who starts following her, and getting closer. Erin turns briefly to look, and recognizes him. The man had bought Erin a drink earlier that night at a bar, but had angrily stormed off when Erin refused to give him her number, swearing loudly and behaving generally belligerently. The man is walking quickly, and rapidly catching up to Erin. The street is empty. Just as the man is coming up right behind Erin, he puts his hand on her should. Erin pulls out a gun and shoots the man in the chest, killing him. Is Erin entitled to a self-defense claim under the common law? Under the MPC?

Q3: Why do you think the MPC replaced the “reasonableness” requirement with the test in MPC 3.09(2)? Do you agree with this shift?