[Abandoned] Reasonable Self-Defence Act

[Denathor]

As far as I can see you currently don't actually use "serious injury" anywhere in the law which makes me wonder why you defined it. Anyway, there's no good reason not to combine these concepts into a single definition of "critical injury." I suggest:

Defines... a "critical injury" as an injury that results in loss of use or function of a limb or organ, or that endangers the life of a person

It actually was used but I agree that they could be combined.

Mandates that the act of reasonable defence of oneself shall not be criminalized, shall be accepted as a legal justification for the use of force, and shall not be subjected to greater evidentiary burdens than other affirmative defences, unless the aggressor is severely orcritically injured or killed,

I don't like the last bit. In the sad situation where you are forced to kill someone because, in context, that was the force required to protect yourself from that aggressor, I don't know why you would lose the defense or be subjected to a greater evidentiary burden. You've already baked the context of the situation and a requirement that the force be "necessary" for self-protection into the definition of self-defense. A person who resorts to lethal force should have the same burden of proving that doing so was was necessary for self protection as anyone else claiming self defense. It may be that meeting the burden will be harder, but that doesn't mean the burden itself is more onerous it just recognizes the reality that lethal force will seldom be "necessary" except in desperate circumstances.

Agreed. I’ll remove the last line

Further mandates that if the aggressor is severely orcritically injured or killed, charges may only be laid after an investigation by the nation determines that the use of force went beyond what is considered reasonable by the laws of the nation,

Consider removing this entirely. Even if the "aggressor" suffers only a series of mild shin bruises and some hurt feelings, Member Nations should be permitted to bring charges against the "defender" if the use of force went beyond what is reasonable.

Example: A snot-nosed toddler stumbles toward an adult who is reasonably afraid of germs. The adult could walk away but decides to stand his ground and kick the toddler in the chest, resulting in an abrasion which does not break the skin and an otherwise extremely sad kiddo. Okay to bring charges?

I believe removing this clause would follow with removing the last sentence of the previous clause, so I must do so.

Permits nations to pass legislation to set limits on behaviour that may be considered reasonable for a defence, such as forbidding lethal force unless it is clear that the aggressor intends to cause death, forbidding certain types of weapons to be used in the act of reasonable defence, or forbidding further force to be used after the aggressor has been incapacitated.

I do wonder to what extent this exception swallows the rule.

Could I "set limits on behavior that may be considered reasonable for a defence" to the extent of prohibiting any use of defensive force unless the person has already attempted all possible means of escape.

Could I "set limits on behavior that may be considered reasonable for a defence" to the extent of prohibiting any use of defensive force unless the person has already attempted, lets say at least twice, to call law enforcement for help?

Could I "set limits on behavior that may be considered reasonable for a defence" to the extent of prohibiting any use of defensive force unless the person has affirmatively warned the person, in writing, that further aggression will be met with defensive force?

According to the spirit of the clause, no, no and no. A clause that would even allowed these examples was removed in a previous edit. This clause is intended to allow nations to say, "hey, don’t hit someone with a sledgehammer if they’re already unconscious." I’ll have to think of how to word it, of even if I want to keep it in. Hmmmm...

[Denathor]

OOC: Made the suggested changes and reworded a clause to hopefully address YM's concerns. Hopefully there are no other problems but who am I kidding, of course there will be

[The New Nordic Union]

or forbidding further force to be used after the aggressor has been incapacitated

OOC: I fail to see how this could be ever allowed under the proposal at hand to begin with, as further force after the aggressor is incapacitated cannot be understood as reasonable for defence, anyway?

[Imperium Anglorum]

Is not

Mandates that the act of reasonable defence of oneself ... shall be accepted as a legal justification for the use of force

this something for a court to decide?

I'd also get rid of the extraneous bolding.

[The New Nordic Union]

Is not

Mandates that the act of reasonable defence of oneself ... shall be accepted as a legal justification for the use of force

this something for a court to decide?

I'd also get rid of the extraneous bolding.

OOC: I read it in the way that the courts are by this resolution instructed to use self-defense as justification of the use of force, EDIT:...when applicable to the case at hand.

[Denathor]

or forbidding further force to be used after the aggressor has been incapacitated

OOC: I fail to see how this could be ever allowed under the proposal at hand to begin with, as further force after the aggressor is incapacitated cannot be understood as reasonable for defence, anyway?

OOC: Yeah. Removed.

Is not

Mandates that the act of reasonable defence of oneself ... shall be accepted as a legal justification for the use of force

this something for a court to decide?

I'd also get rid of the extraneous bolding.

OOC: I read it in the way that the courts are by this resolution instructed to use self-defense as justification of the use of force, EDIT:...when applicable to the case at hand.

The bolding has been fixed. New Nordic Union is correct with the interpretation. Perhaps I should specify in the definition of reasonable defence that it’s "as determined by the judiciary of a nation?"

[The Yellow Monkey]

Perhaps I should specify in the definition of reasonable defence that it’s "as determined by the judiciary of a nation?"

Yes but at this late stage might I plant a devil on your shoulder?

Perhaps you should say one of these:

“Shall be accepted if proved as a legal justification”

Or

“Shall be accepted unless disproved as a legal justification”

I am sure you can see the difference between these two constructions. How strong do you wish to make the right? You’d also want to remove the word “affirmative” later in that same clause, it’s a bit superfluous in my opinion.

[Imperium Anglorum]

Yes but at this late stage might I plant a devil on your shoulder?

Perhaps you should say one of these:

“Shall be accepted if proved as a legal justification”

Or

“Shall be accepted unless disproved as a legal justification”

I am sure you can see the difference between these two constructions. How strong do you wish to make the right? You’d also want to remove the word “affirmative” later in that same clause, it’s a bit superfluous in my opinion.

The word 'affirmative' has significant meaning in this context.

Mandates that the act of reasonable defence of oneself shall not be criminalized, shall be accepted as a legal justification for the use of force, and shall not be subjected to greater evidentiary burdens than other affirmative defences,

The presence of the word also precludes the second wording.

[The Yellow Monkey]

The word 'affirmative' has significant meaning in this context.

Mandates that the act of reasonable defence of oneself shall not be criminalized, shall be accepted as a legal justification for the use of force, and shall not be subjected to greater evidentiary burdens than other affirmative defences,

The presence of the word also precludes the second wording.

Perhaps I was too coy.

I meant that maybe, just maybe, it should not be an affirmative defense. Rather, it should be something you assert and that the government must then disprove. That is not uncommon: many jurisdictions require only that the person "raise" self defense, at which point it becomes the states burden to prove, beyond a reasonable doubt, that the defense does not apply to that situation.

That framework is much more protective of the right, and reflects the fact that self defense is seen as a justification for force rather than an excuse. The distinction between those concepts is beyond the scope of this post, but the idea is that justifications are things which render the conduct "not bad" whereas excuses are things which render the conduct "bad, but forgivable."

[Denathor]

OOC: Did a bit of rewording. Hopefully now it reads as it’s supposed to. Also, I made some edits to the Permits clause to close a loophole I thought of:

Permits nations to pass legislation to set restrictions on what actions may be considered reasonable for a defence such that they do not interfere with a person’s ability to commit the basic act of defence

[Denathor]

OOC: A sudden influx of assignments combined with exams has meant this has gone untended longer than I hoped. But I’m back and ready to move this along, if there are no more problems.

[Denathor]

OOC: Made another addition to the draft.

[Denathor]

Bump. In the absence of any further advice/criticism, I’ll look at submitting this in ~2 weeks once the queue dies down a bit.

[Kenmoria]

“Clauses 3i and 3ii seem redundant together. If an aggressor attempts to cause grievous bodily harm or death, then that is necessarily a provocation.”

[Denathor]

“Clauses 3i and 3ii seem redundant together. If an aggressor attempts to cause grievous bodily harm or death, then that is necessarily a provocation.”

"True, but the definition of provocation extends beyond physical provocation. For example, insults or certain gestures could also be considered provocation."

[Maowi]

"I believe the argument is that since all grievous bodily harm or death is a form of provocation, 3.ii. is already included within 3.i. and is therefore redundant.

3. Affirms that the burden of proof is on the prosecution to refute the claim of reasonable self-defence by disproving one of the following elements beyond a reasonable doubt:
i. that the alleged aggressor did not offer any provocation,
ii. that there was no intention by the aggressor to cause death or grievous bodily harm at time of assault, or
iii. that more force than was necessary was used in the act of self-defence,

"In any case, clause 3.iii. is ... perplexing. You're asking prosecutors to prove that the defendant was not in fact engaging in self defence by demonstrating that they used no more than the necessary force? I'd wager you mean quite the opposite ..."

[The New Nordic Union]

Affirms that the burden of proof is on the prosecution to refute the claim of reasonable self-defence by disproving one of the following elements beyond a reasonable doubt:

1. that the alleged aggressor did not offer any provocation,
2. that there was no intention by the aggressor to cause death or grievous bodily harm at time of assault, or
3. that more force than was necessary was used in the act of self-defence,

OOC: This reads America/common law centric to me; burden of proof on the 'parties' to a criminal case might not exist in other legal systems.

[Sciongrad]

[*]Affirms that the burden of proof is on the prosecution to refute the claim of reasonable self-defence by disproving one of the following elements beyond a reasonable doubt:

1. that the alleged aggressor did not offer any provocation,
2. that there was no intention by the aggressor to cause death or grievous bodily harm at time of assault, or
3. that more force than was necessary was used in the act of self-defence,

I have pretty serious issues with how you've formulated self-defense. Why is actual purpose to cause death or seriously bodily harm by the aggressor a necessary element of self-defense? Suppose a reasonable person would fear for their life under the circumstances. If the reason we offer self-defense as an affirmative defense is because we recognize that the conditions are such that the defendant is not culpable, then should it matter whether, as a factual matter, the aggressor actually had purpose to cause death or serious bodily injury? Their subjective mental state has very little bearing on what a reasonable defendant under the circumstances would do.

Second, and this issue bleeds into the first one, why is defendant limited to the amount of force that was actually necessary, rather than the amount a reasonable defendant under the circumstances would believe to be necessary? Suppose an aggressor announces they intend to kill you. They approach you menacingly, but at some distance, suspiciously and quickly reach into their pocket. You shoot them, under the reasonable belief that they were about to pull a gun and kill you. It turns out they had no weapon. This resolution would deny the defendant a self-defense instruction because as a factual matter, they used more force than was necessary.

Some other notes. Many jurisdictions require a duty to retreat if it is safe to do so. Arguably, that is covered by the necessary force clause, but there are many jurisdictions that tie lethal force in self-defense to necessity, but also allow a "true man" defense. I also wonder what you think about self-defense in situations where the defendant is the initial aggressor?

[Denathor]

OOC post. I did some work with clause 3. Hopefully I eased at least some of the concerns.

"In any case, clause 3.iii. is ... perplexing. You're asking prosecutors to prove that the defendant was not in fact engaging in self defence by demonstrating that they used no more than the necessary force? I'd wager you mean quite the opposite ..."

I've gone back and forth over whether it should be an affirmative defence or a negating defence. At the moment, I intend it to be a negating defence.

Many jurisdictions require a duty to retreat if it is safe to do so. Arguably, that is covered by the necessary force clause, but there are many jurisdictions that tie lethal force in self-defense to necessity

Already tried to add such a clause. Got very little support.

but also allow a "true man" defense. I also wonder what you think about self-defense in situations where the defendant is the initial aggressor?

Who carries the blame in such a situation would be up for interpretation by the judiciary of the relevant nation, I would think. Any other suggestions would be welcome.

[Imperium Anglorum]

I won't vote for anything of this sort that is not an affirmative defence.

[Denathor]

I won't vote for anything of this sort that is not an affirmative defence.

Callahan pulls out the file on IA and checks the line labelled "endorsements." He nods slowly and dabs sweat off his forehead with a handkerchief.

"Well, looks like I have some work to do."

[Sciongrad]

I won't vote for anything of this sort that is not an affirmative defence.

I'm also curious about why you've made it a negating defense. Are you aware of any jurisdiction that makes not acting in self defense an actual element of all of its violent substantive offenses?

[Imperium Anglorum]

I don't want to make it a question of merely just votes; I have mostly the same concerns that Sciongrad has.

[Maowi]

OOC post. I did some work with clause 3. Hopefully I eased at least some of the concerns.

"In any case, clause 3.iii. is ... perplexing. You're asking prosecutors to prove that the defendant was not in fact engaging in self defence by demonstrating that they used no more than the necessary force? I'd wager you mean quite the opposite ..."

I've gone back and forth over whether it should be an affirmative defence or a negating defence. At the moment, I intend it to be a negating defence.

OOC: Maybe I'm missing something here, but even if you're keeping it as being a negating defence, why would the prosecution try and prove that the defendant did NOT use more force than was necessary?? You're basically saying that for the prosecution to show that the defendant did not use reasonable self-defence, they have to disprove that the defendant did not use reasonable self-defence. Which makes zero sense.

Affirms that it is the responsibility of the prosecution to refute the claim of reasonable self-defence by disproving beyond a reasonable doubt that the alleged aggressor did not offer any provocation or that more force than could reasonably be believed to be necessary was used in the act of self-defence,

Cancelling out the double-negatives, this essentially says "The prosecution must refute the claim of reasonable self-defence by proving that the aggressor offered provocation or that no more than the necessary force was used in the act of self-defence."

[Denathor]

OOC: The nuances of law are not my forte, so I’m a bit stuck on how exactly to proceed. Here’s what I’ve done so far, any suggestions/criticism would be helpful:

2. Mandates that the act of reasonable defence of oneself shall not be criminalized, shall be accepted, unless disproved, as a legal justification for the use of force, and shall not be subjected to greater evidentiary burdens than other affirmative defences, so long as a preponderance of the evidence supports the claim,

3. Affirms that it is the responsibility of the prosecution to refute the claim of reasonable self-defence by proving beyond a reasonable doubt that the alleged aggressor did not offer any provocation or that more force than could reasonably be believed to be necessary was used in the act of self-defence,