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When is it self-defence, and when is it assault or murder?

#assault #selfdefence #criminal #provocation #murder

It is not uncommon in today's society for someone to be placed in a position to defend himself/herself from someone or something else.

So when is it self-defence, and when is assault or murder?

To start things off, lets look at the legal definition of assault, often referred to as assault common, which is an unlawful and intentional act or omission which results in or inspires the belief in another person that their bodily integrity is or will be directly or indirectly impaired. The easiest way to explain this without using legal jargon is by saying that assault is when someone is physically hurting you, or you have a reasonable belief that someone is about to hurt you.

The next thing we can look at is the more serious form of assault, which is assault with the intent to do grievous bodily harm ("assault GBH"). The definition of this type of assault is similar to assault common, except that it also includes the words "with intent to do grievous bodily harm" - and is usually applied when a weapon was used, if serious injuries were caused, or if there were injuries (lacerations or severe blunt force trauma) caused to the face.

Then lastly, lets look at the legal definition of murder, which is the unlawful and intentional causing of the death of another human being. It follows that if a person dies, and it was due to assault, it could be bumped to murder.

In both assault and murder, there are also lesser charges, such as attempted assault, attempted murder and culpable homicide. The injuries suffered by a person will generally determine the offence a person is charged with and or convicted of.

Nevertheless, the requirements of all of the above is "unlawfulness", which is the primary word that is being challenged with the concept of self-defence. This is to say that it cannot be assault or murder if the impairment of bodily integrity, or injury, was lawful. This in turn means that if you injure someone in self-defence, it cannot be assault or murder, because the injury was lawfully caused.

This is not so straightforward as it seems however. Self-defence is generally regarded as being the last resort. This means that one of the first things you should always try to do is to avoid the assault, which in practice means that you should run away. There are a few exceptions to this principle. Firstly, you are not generally regarded as having to run away if the assault occurs in your house, as your house is "your castle". Secondly, you will not be required to run away if it would be more dangerous to run away than to fight back. If however you do something that is the opposite of trying to avoid an assault, such as if you choose to go to someone's house, while under the influence, and did so while angry because said person has refused to pay you back the money you lent them several months ago, and a fight breaks out, it could very well put you on the wrong side of the law.

The second thing you should look at when it comes to self-defence is proportional force. If someone attacks you with fists, it would be going to far if you then use a knife or firearm. However, it is also unrealistic to use the exact same weapon. That is to say that if someone attacks you with a steak knife, you aren't expected, in a self-defence situation, to look only for a steak knife or another knife to fight back with. The size and strength of the attacker also becomes very relevant when proportional force is looked at, as requiring a weapon to fight back against an unarmed individual if they are twice your size, may in fact mean that a knife could be proportional force. Exceeding proportional force is one of the biggest questions when it comes to murder - a situation may have initially been self-defence, but on account of excessive force used, a death was caused - then the question will be asked - was there an alternative, or was it necessary?

The third thing to be looked at is, you can only act in self-defence if the attack is in progress or about to commence. This means that if you act in "self-defence" when the attacker has already stopped, and the person is walking away, it cannot be self-defence - it will then be assault. You can similarly not act in self-defence if the person is laying on the ground. This is to say that if you push the attacker, and they fall on the ground, kicking the attacker while the attacker is laying down is, unless there is an exceptional reason, a very bad idea.

The fourth and last thing to look at is that there should be a reasonable fear of injury. If there was no reasonable fear that you would be injured - there is no reason to act in self-defence. Punishment is not a reason to act in self-defence.

Now, it is very difficult to think about all of the above and consider the four things mentioned while in the heat of the moment. The court is aware of this. The court will however take the above into consideration to try and determine if the act of self-defence was lawful. If the court believes that you were acting maliciously, acted out of vengeance and or retribution, that you wanted to punish someone, or that you exceeded the bounds of self-defence, the court may very well conclude that you are guilty of an offence yourself.

Naturally however, a person can also act in self-defence of another person, a family member or stranger, or even in defence of property.

Self Defence in cases of verbal assaults are however a trickier matter. Theoretically, yes, it is possible to act in self-defence in response to a verbal assault, but only in very specific circumstances, such as with very serious violations of a person's dignity. The problematic thing here is that it is very easy to exceed the bounds of self-defence in these instances - and verbal assault could very easily be seen as being provocation instead of something that required self-defence. If the court considers the verbal assault as having constituted provocation only, it is a problem, as provocation in itself, is not a defence that will prevent a conviction. That being said, the provocation will be seen as a mitigating factor in sentencing, which may prevent a harsher sentence or imprisonment, but it will not prevent a conviction and criminal record.

There is also a legal distinction that will need to be drawn between self-defence and necessity. If you need to defend yourself from the random attack by an animal, this would not constitute self-defence. The reason for this is that a dog is not a person, and you can only act in self-defence against an attack or perceived attack if it is directed by a person. If you defend yourself from a random animal attack that is not directed by a person, you would be acting in necessity, and not self-defence. The principles between necessity and self-defense are similar. That is to say that if a small dog attacks you, and you fight back with a weapon, and repeatedly strike the animal with it, causing it to sustain a severe injury, the question of proportional force comes into question, which could lead to you facing charges of animal cruelty.

In conclusion, there is no general rule of thumb when it comes to the fine line between assault and or murder and self-defence - and it is much more nuanced than is explained in this article. The above however serves as a general outline of the most often used circumstances the court will take into consideration to determine if an act was indeed self-defence, whether the bounds of self-defence were exceeded, or if it was just out-and-out assault and or murder from the get go.

Swart Attorneys Inc.

The aforementioned information is provided for informational and or educational purposes only, and is in no way intended to supplement a consultation with an attorney and or obtaining legal advice on the specifics of a particular case. The reader furthermore consumes this article at his or her own risk.

There are furthermore no guarantees made as to the accuracy of the information contained in this article after date of publication as case law and legislation continuously changes.

© 2020 Anton Swart Attorneys Inc

Block 15 D, Central Office Park

257 Jean Avenue,

Centurion, Pretoria

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