Self defence is not a legal option for women facing male violence

Two great resources on the law, and self-defence (mitigation/defence) when applied to women, both for rape and domestic violence.

The laws are made for  men, by  men. They do not serve women, particularly within the context of lethal self-defence (or even rape). You only have to know about Marissa Alexander’s case for example, but many others as well.

Generally within UK/Australian (and many other countries’) law, the defence of self-defence (as a mitigating circumstance for homicide/manslaughter) is on a like-for-like weaponry basis, plus a reasonable belief that yourself or others nearby, are in danger of death or serious injury. It does not factor in that the ‘average man’ is generally larger, heavier, and more fight-experienced than the ‘average female’—an oversight that is not overlooked in something like the men’s sport of boxing, where opponents are matched primarily on weight. The only ways that most women can gain the upper hand against most males, is by ‘out-weaponing’ the male, or by a pre-emptive or surprise attack (usually both). The like-for-like weaponry is if; he has a knife, you can have a knife; if he has a gun, you can have a gun. All very ‘neat’, but in reality, how often does this happen? If say, he has a knife, and you have a gun, then it is deemed not a case of self-defence. If you are in fear for your life at that moment, do you say “hang on a minute, I had better get a knife and make this a ‘fair fight'”?

What is an excellent point in both these resources, is that the additional factor of ‘past history’ and not taking the final incident as a stand-alone incident is raised.

“I don’t understand how she can have a duty to retreat when she gets into the car,” he said. “She’s not dressed. She doesn’t have a cell phone. Her baby is inside the house. So how can there be a duty to retreat? If she retreats and he kills the baby, she’s guilty of failure to protect. Connecticut prosecutes those cases.”

“What they are doing in this case is they are applying the same standard to Cherelle as they would do to a male,” he continued. “What I’m saying is it is a completely unrealistic standard. There is no duty to retreat issue here.

and

“You hear that all the time in these cases,” Stark said, “because juries don’t get the idea that this is a course of conduct. It’s not an episodic issue. It’s not a question of a single event taken out of its historic context. When she is responding to him, she is not responding to the threat that morning. She is using what I call the ‘special reasonableness of battered women.’ She knows everything that has come before that he has done. She knows him better than anyone else knows him. She knows what he is capable of. And he had taken the baby. He had kidnapped the baby. She went after him in the car. It wasn’t just a theoretical risk to their child.”

The article in Salon, is a great overview of the key issues. But for a fuller account, the article for the Miami Law Review, is excellent, certainly worth reading the 30 pages. I love the contextual legal/societal sexism analysis, and how that is both put into practice and also at the very intention of the legislation (for the male standard of defence only).