Duty to retreat: Difference between revisions
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In the [[criminal law]], the '''duty to retreat''' is a specific component which sometimes appears in the defense of [[self-defense (theory)|self-defense]], and which must be addressed if the [[defendant]] is to prove that his or her conduct was [[excuse|justified]]. In those [[criminal jurisdiction|jurisdictions]] where the requirement exists, the [[burden of proof]] is on the defense to show that the defendant was acting reasonably. This is often taken to mean that the defendant had first avoided [[conflict]] and secondly, had taken reasonable steps to retreat and so demonstrated an intention not to fight before eventually [[use of force|using force]]. |
In the [[criminal law]], the '''duty to retreat''' is a specific component which sometimes appears in the defense of [[self-defense (theory)|self-defense]], and which must be addressed if the [[defendant]] is to prove that his or her conduct was [[excuse|justified]]. In those [[criminal jurisdiction|jurisdictions]] where the requirement exists, the [[burden of proof]] is on the defense to show that the defendant was acting reasonably. This is often taken to mean that the defendant had first avoided [[conflict]] and secondly, had taken reasonable steps to retreat and so demonstrated an intention not to fight before eventually [[use of force|using force]]. |
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==American law== |
==American law== |
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Revision as of 10:02, 15 February 2010
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In the criminal law, the duty to retreat is a specific component which sometimes appears in the defense of self-defense, and which must be addressed if the defendant is to prove that his or her conduct was justified. In those jurisdictions where the requirement exists, the burden of proof is on the defense to show that the defendant was acting reasonably. This is often taken to mean that the defendant had first avoided conflict and secondly, had taken reasonable steps to retreat and so demonstrated an intention not to fight before eventually using force.
American law
Some American jurisdictions require that a person retreat from an attack, and allow the use of deadly force in self defense only when retreat is not possible or when retreat poses a danger to the person under attack. The duty to retreat is not universal, however. For example, police officers are not required to retreat when acting in the line of duty. Similarly, some courts have found no duty to retreat exists when victim is assaulted in a place where the victim has a right to be, such as within one's own home. State v. Allery, 101 Wash.2d 591, 682 P.2d 312 (1984). The Model Penal Code § 3.04(2)(b)(ii) suggests statutory language that also recognizes an exception to the usual duty to retreat when the victim of the attack is in his or her own dwelling or place of work.
Many states employ "stand your ground" laws that do not require an individual to retreat and allow one to match force for force, deadly force for deadly force. Such as with the Washington State Supreme Court affirming state laws by ruling "that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be."[1][2]
English law
In English law the focus of the test is whether the defendant is acting reasonably in the particular situation. There is no specific requirement that a person must retreat in anticipation of an attack. Although some withdrawal would be useful evidence to prove that the defendant did not want to fight, not every defendant is able to escape. In R v Bird (1985) 1 WLR 816 the defendant was physically attacked, and reacted instinctively and immediately without having the opportunity to retreat. Had there been a delay in the response, the reaction might have appeared more revenge than self-defence. It might be different if the defendant sees an enemy approaching and decides to stand his ground. The answer may depend on where the threat is recognised. In a public place, where there are many other people present, a judgment must be made on whether an attack is imminent. As a matter of policy, no-one should be forced out of the streets because of fear, but prudence might dictate a different answer at night when the streets are empty.
 | This article possibly contains original research. (November 2007) |
Carrying weapons
As to carrying weapons in anticipation of an attack, Evans v Hughes (1972) 3 A ER 412 held that for a defendant to justify his possession of a metal bar on a public highway, he had to show that there was an imminent particular threat affecting the particular circumstances in which the weapon was carried. Similarly, in Taylor v Mucklow (1973) CLR 750 a building owner was held to be using an unreasonable degree of force in carrying a loaded airgun against a builder who was demolishing a new extension because his bills were unpaid. More dramatically, in AG's Reference (No 2 of 1983) (1984) 1 AER 988 Lane CJ. held that a defendant who manufactured ten petrol bombs to defend his shop during the Toxteth riots could set up the defence of showing that he possessed an explosive substance "for a lawful purpose" if he could establish that he was acting in self-defence to protect himself or his family or property against an imminent and apprehended attack by means which he believed to be no more than reasonably necessary to meet the attack.