Defending Yourself

“Hey, Larry, nice haircut! Is your barber blind?” Frank laughed at his own joke and then smirked when Larry came closer. A couple of drinks must have skewed Larry’s judgment, Frank figured. The little runt forgot Frank was a pretty good boxer. Well, time to remind him. As soon as Larry got close enough, Frank laughed again. “I’m gonna smear the pavement with you, twerp.” To prove his point, he socked Larry solidly in the nose.

Larry crumpled. But then he got up, nose bleeding, and pulled out a pocketknife. He opened the largest blade and held it aloft. “Get out of here before I perforate you, Frank.”

Frank scoffed, danced to the right, and landed another blow, this one on the side of Larry’s head. When Larry fell this time, he knocked his skull against the edge of the bar. He twitched a few times on the ground before going still.

Frank looked up to see the bartender pointing a gun at him. “Sit tight,” said the bartender. “Police are on the way.”

“Yeah, whatever. It was self-defense anyway.”

Frank’s sounding awfully cavalier there. He’s going to wise up after he talks to a lawyer, because chances are he won’t be able to claim self-defense.

Self-defense is an old defense, one of the many that Americans adopted from England. It’s based on the premise that a person shouldn’t be held criminally liable for protecting himself, and it’s fairly commonly used. But there are rules as to when it applies.

One of those rules is that a defendant can’t use the defense if, like Frank, he initiated the violence. So Frank is out of luck already. But there are other limitations too.

  1. The person must reasonably believe he had to use force to protect himself. It’s okay if he was mistaken in the belief (“I thought I saw him reaching for a gun”) as long as the mistake was reasonable.
  2. The amount of force used must be proportionate to the threat. You can’t shoot someone who’s threatening to slap your face.
  3. The threat must be imminent. You can’t use this defense if the other person says, “Someday I’m going to kill you!”

So one corollary to the defense is that the threatened person must retreat if he can safely do so. It sounds as if Frank could have walked away from Larry, so he’s again out of luck. But there are two exceptions to this. One is called the castle exception, which holds that a person need never retreat in his own home. The other exception is recognized in some jurisdictions but not others, and is most popularly called the stand your ground doctrine. It holds that a person need not retreat even if he can safely do so, and it received a lot of attention during George Zimmerman’s trial for his fatal shooting of Trayvon Martin.

Self-defense extends to the right to protect other people. If Alice sees Bob being beaten by Carl and punches Carl in order to save Bob, she may be able to use the defense. But only if Bob himself could have used it! So if instead the bartender saw Larry pull the knife on Frank and, unaware that Frank started it, shot Larry, the bartender would be out of luck. So be careful before rescuing someone!

Self-defense does not include the right to protect property. You can’t use deadly force to keep someone from stealing your stuff.

This defense allows a lot of plot possibilities. Was your character reasonable when he mistakenly believed the other guy was reaching for a gun? Was the threat truly imminent? Did your character use an appropriate degree of force under the circumstances? Who intervened in the fight and did she have a right to?

As for Frank, he better hope that Larry pulls through. Otherwise he’s looking at a long stint in prison.

That’s Insane

The law allows for a lot of defenses in criminal cases. Some of them are used fairly often, like self defense, while others are somewhat more obscure, such as involuntary intoxication. But probably no defense has as many myths surrounding it as the insanity defense. Today I’m going to shed some light on the issue.

  1. The insanity defense isn’t new. It’s documented in English common law as early as the 14th century.
  2. The legal definition of insanity has little to do with medical definitions of mental illness. It’s not only possible, but quite common, for a person to have a documented mental illness yet not meet the legal standard of insanity.
  3. The legal test for insanity varies by jurisdiction. The mostly widely used is the M’Naghten Rule, developed in a British case in 1843: Daniel M’Naghten attempted to assassinate the prime minister (and instead killed the prime minister’s private secretary). In order for the M’Naghten Rule to be used successfully, the defense lawyer must prove that because of a mental disease or defect, the defendant was unable to understand the nature of his actions or was unable to distinguish right from wrong.
  4. Four US states have abolished the insanity defense completely (Idaho, Kansas, Montana, and Utah).
  5. The insanity defense is used in fewer than 1% of criminal cases.
  6. The insanity defense is successful only about a quarter of the time.
  7. If a defendant is successful with the insanity defense, he will rarely be set free right away. Instead, he’ll almost always be committed to a mental hospital until he’s deemed no longer a danger to himself or others. Unless he was accused of a serious crime, this may mean he’ll spend more time in the hospital than he would have in prison. John Hinckley, Jr., for example, has been locked up since 1982, after he shot President Reagan and three other men in an assassination attempt.
  8. There have been attempts to reform the insanity defense. In the 1960s and 1970s, some states adopted tests that were easier to meet than M’Naghten and more in line with scientific knowledge of mental illness. But after Hinckley was successful with the newer defense, many of these states switched back to the old rule.

Incidentally, if you’re writing a serial killer, it’s very unlikely he’ll be successful with an insanity defense. Jeffrey Dahmer wasn’t deemed insane, despite killing 16 people—and committing necrophilia and cannibalism. Although most serial killers likely have antisocial personality disorder (and/or other personality disorders), these are generally not considered to be a “mental disease or defect.” Furthermore, most serial killers are quite aware of what they’re doing and that it’s wrong.

You may have heard the term “temporary insanity.” This isn’t a separate defense. It happens when the defendant claims she was legally insane at the time of the crime but has since regained mental stability. Its use is extremely rare. Probably the most famous case was Lorena Bobbitt, who cut off her abusive husband’s penis while he slept. The jury found her not guilty by reason of insanity, but after an evaluation at a mental hospital, she was released.