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DaveO 09-10-2002 04:27 PM

Legal Aspects of Self Defence
 
Oh, no! It's Dave again! :D
As many of you know, I've been devising a training plan for Aikido as street defence. One of the things I've always believed is that if one intends to use a Martial Art for street defence, one should have a good working knowledge of the laws relating to self defence. So, I sat down with a policeman; Steve - a good buddy I've known since high-school. We went through the Criminal Code of Canada and discussed the important points; I included the results in the training plan.
I'd also like to discuss them here; due to the international nature of the forum; (friends from ALL OVER!) a comparison of our respective countries laws would make for a fascinating study.
So, on behalf of Canada, here's our appropriate laws:
Quote:

Sec. 27, 34-37, Criminal Code of Canada
Sec. 27:

USE OF FORCE TO PREVENT COMMISSION OF OFFENCE.
27. Every one is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and
(ii) that would be likely to cause immediate and serious injury to the person or property of any one; or
(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a). [R.S., c.C-34, s.28.]
Sec. 34:
SELF-DEFENCE AGAINST UNPROVOKED ASSAULT
... / Extent of justification.
34. (1) Every who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [R.S. c.C-34, s.34.]
Sec. 35:
SELF-DEFENCE IN CASE OF AGGRESSION.
35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose. [R.S. c.C-34, s.35.]
Sec.36:
PROVOCATION.
36. Provocation includes, for the purposes of sections 34 and 35 , provocation by blows, words or gestures. [R.S. c.C-34, s.36.]
Sec.37:
PREVENTING ASSAULT
... / Extent of justification.
37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [R.S. c.C-34, s.37.]
The laws themselves are very clearly laid out and leave no room for interpretation. However, we MUST be cautious here. There is a catch here; actually 2:
1) As the person using force for defence or to prevent the commission of an offence, one must be prepared to prove justification for one's actions. We have to be able to prove that, under the circumstances, a)the use of force was justified and b) no reasonable option was available at the time.
2)The second catch is harder; it doesn't have a point of law, but it's there: As Martial Artists, we have to prove beyond doubt that we have used the minimum force possible.
The reason this is a catch is that you don't have to convince the cops, who know something about the street, you may have to convince a judge and jury, who don't. Remember, to many ordinary folk, Martial Artists are potentially violent people whose hands and feet are 'lethal weapons' who like the idea of committing unarmed mayhem.
So that's the law as it exists in Canada. I'd love to see the various laws of your countries for comparisons.
Cheers!
Dave

shinji6999 09-10-2002 06:55 PM

Its similar in Australia, reasonable force is OK, but anything more is not.

A recent magazine article I read by a karate student who is also a lawyer specialising in this said that kicking techniques are out totally unless you are outnumbered or they have weapons or you are getting your bum kicked.

One of our instructors was given a hard time by six guys, he broke the nose of the guy with the bigest mouth & pinned him with sankajo where he could see the others, who all decided that they weren't good enough. The police were there (public event) & didn't have a problem with this at all. According to our laws here it becomes reasonable because he thought the six guys were intending to do him injury & by taking out the first guy hard, he didn't need to touch the others.

On the other hand, there have been cases in the past where the judges have assumed that because you have martial arts eperience you are the expert in the incident & therefore shouldn't have needed to damage your assailant.

Jermaine Alley 09-11-2002 12:53 AM

Self Defense?
 
James

I think that you hit it on the head. The courts view us martial artists as experts when it comes to physical aggression. We do have to prove that our aggression was done to defend ourselves, and then we have to illustrate why that situation caused us to act the way that we did.

For example: Why, if you are a black belt in a martial art that focuses on having to defend yourself against 8 attackers..why was it necessary to break my clients (one attackers) wrist with this technique?"

Oh, now lets not forget that after you go through that criminal proceeding ifyou are charged..which I think i should go into first.

Lets say that you are on a scene where you broke a persons nose...thats malicious wounding in virginia, where I am. The Police arrive (myself) and the code states that we have to make an arrest. Yes, you, the caring martial artist gets to take a ride on a malicious wounding charge. Those officers onthe scene are not the "court of Law"..they don't have to be reasoned with..they have a job to do.

Then you go to court...both criminal and civil. Now after you attempt to defend yourself to a judge and jury (time consuming and expensive) in criminal court..now you have to go and do the same damn thing in civil court. Just because you won your criminal case doesn't mean you won't be held liable for his or her damages in the CIVIL world..which requires a different set of criteria to be met.

This is kind of long...LESSON..DON'T PUT YOURSELF IN A SITUATION WHERE YOU HAVE TO FIGHT. That is such an easy thing to do.

Now, we all want to try this stuff that we learn..that we spend so much time practicing, but on the streets, now a days is not the place to do it unless it is absolutely necessary.

Further insights, experiences?

jermaine

Jim ashby 09-11-2002 05:50 AM

I have jus been resarching this very situation in UK law. It boils down to three things,

1/ You must show that you reasonably fear immediate attack, or you are being attacked

2/ You must show that there was no other reasonable alternative, bearing in mind "the heat of the moment"

3/ The response must be proportional to the threat. If you are attacked with a balloon it's very difficult to prove proportinality if you use a knife.

The problems arise when the court finds out you are a martial artist, everyone who has just walked past a Dojo will be described in court as a martial arts "expert" and, therefore, as someone who should have known better or was just looking for an excuse to use their training.

The main thing is try not to ever get into a situation where you have to use your knowledge, because the DLS that attacked you will get a better lawyer and will drag you through the courts. Unfair I know, but that's how it is.

Have fun.


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