Saturday, 19 August 2017

What the Law sees as Self Defence

Hello, everyone.

After reading Jackie Bradbury's recent article in our G+ community I felt compelled to share what I have learnt in this regard.

Some of you already know that I am a practicing attorney and among those who know are a number of people who know that I have at one stage of my career spent 4 days out of my 5 day work week in a criminal court as what American readers refer to as a "Public Defender".

Charges of "Common Assault" and "Assault GBH" formed a large part of my briefs during that time.

Now- I am not going to quote a bunch of court cases or legislation in today's post. I save that kind of talk for when I appear before magistrates and judges. They like hearing that kind of thing.

What I do want to do is give martial arts students who do care about the law and who wish to abide by it the guidelines that he/ she has to keep in mind. It is actually not a lot to remember and actually quite simple.

I live in South Africa and belong to an ethnic group in this country known as the "Afrikaners" or the "Boers". With a lot of us being hot-blooded- especially those of us who'd rather spend a Saturday night at a bar or club instead of in front of a computer- violence amongst ourselves is not a rarity. Being perceived by a seemingly large part of this country's Black population as walking ATM's or just people deserving of most cruel acts of violence the chances of any of us to run into a black person wishing to do us harm is rather large.

As much as the need for us to defend ourselves is undeniable a large number of us fear prosecution far too much to fight back because they do not want to end up like the farmer in the story below:

http://maroelamedia.co.za/nuus/sa-nuus/boer-vas-na-aanvaller-sterf/

My apologies- the news article is in Afrikaans. For the purpose of this post I will just say that a white farmer in a town very close to mine got attacked by a black man and he defended himself with a knife- stabbing the black man to death. He phoned the police and ambulance and for his trouble he got arrested and- since it was a Friday night- detained in police custody until he could be brought to court that coming Monday.

Incidents like this do not happen very often. We do- however- have lots of incidents where the victims are unable to fight back and end up being robbed, raped and mudered.

While to laypersons the above incident seems irrational I am not surprised by the police's approach. You see- the first reality you as an adult, who is no longer in the schoolyard, has to face and accept is that self defense is indeed a defense against charges of murder and both degrees of assault, but defenses won't do you any good being raised with policemen. I can actually warn you and say that telling a policeman your defense/ excuse at the time of your arrest or at the time of you being charged at the police station can in some cases lead to the policeman working on the case thinking up ways to rebut your defense.  

Defenses are raised in court and before you get to raise your defense you have to be arrested, charged and brought to court. If you are arrested at any time from a Friday afternoon to a Sunday you will wait in custody to be brought before court. It is also only in court when you will get a chance to apply for release on bail pending finalisation of the case against you.

This is really not the kind of trouble you want to get into just because somebody was "lookin' at me funny", but I am sure that many of use would rather go through all this instead of getting maimed or killed.  

During your trial the presiding officer (in our lower courts that would be Magistrate and in our High Courts a Judge. Assault gets heard in a lower court, btw.) will judge your story by the guidelines that I will set out below. It has to be mentioned that, because of the standard of proof against you being that of Above All Reasonable Doubt you have to be acquitted of your charge/s if the reasonable possiblity of self defense is proven to exist.


The guidelines are the following:

1. Retaliation is not self defense- Really- if someone has already beaten you up and then walks away thinking that he has taken care of you and you get up and prove him wrong by kicking the crap out of him that is not self defense. Do not expect the court's sympathy if that is going to be your story. The Law does not care about your fighter's pride or your bruised ego.

2. You may attack somebody in defense of someone other than yourself. Certainly. You may protect somebody who is being unlawfully attacked.

3. The amount of violence being used should not exceed the amount necessary to avert the danger. When Sun Tzu said that it is not wise to attack soldiers who are retreating he was not thinking about any law. In the case of you as a civilian who happens to know how to fight it is really important to know that attacking an assailant that is already incapacitated or fleeing (unless you want to retrieve an item forcefully taken from you) is not going to do your case any good. If an assailant backs off without doing you any physical harm or taking anything tangible from you it is time to stop. I won't say that it is time to drop your guard, but it is time to stop attacking.

Now- with the legal advice having been given I want to talk about putting this knowledge into practice so that you know what kind of responses to have ready for self defense situations...

Now let's start at the very beginning of the confrontation. Accepting a challenge is not self defense. Being called to come over by a suspicious individual or hostile looking group of people and then actually going to them is further a really stupid thing to do from a tactical point of view.

In competition Karate and MMA a takedown means that it is time to go in for the coup de grace, but in a self defense scenario (I'll refrain from using the phrase "on the street") having an assailant lying on the ground can be your chance to escape and if escaping is a viable course of action you do just that without hesitation and you do not even consider fighting any further.

Likewise- if you have rendered your assailant unable to run as fast as you then you run.

Now- self defense experts have come up with this colour coded system of classifying threats into conditions such as "condition yellow", "condition red" and so forth. It is good to know these things. The earliest and least dangerous of these conditions can be averted by early perception and simple avoidance by leaving the dangerous area. If it becomes known that you were expecting trouble and with the love for a good fight as your only reason you decided to stick around to see whether you can get some action you will actually get convicted of having commited a crime.

When you find yourself faced with an assailant who is about to attack and fleeing is not an option, you might think that now is the time to go into your kamae like this:


If that is your choice then- congratulations! You have just warned an attacker that is most likely going to fight dirty and who probably has backup ready for those harder targets that you intend to fight. Now he has been given a chance to prepare!

50/50 chances are nice for tournaments where good sportsmanship has a place, but I don't like giving the scum on our streets any chance.

Besides that- if you have time to dance around in your competition kamae you probably have a chance to run away as well. The court would want to know why you chose to use that chance to throw feints and move in and out...

Also- ask any karateka and he/she will tell you that no kata starts off from the stance showed in the photo above.

Kata- in which a lot of the techniques we aren't allowed to use in tournaments, but that are ideal for self-preservation, rather seem to tell a story that goes like "I was just standing here minding my own business when this guy came at me from the left with a kick and..."- well- you know what I mean...

In the scenarios presented by the kata the assailant is already within attacking range and launching his attack.

That does not mean that- if you know an attack is coming, but you just don't know when, that you have to wait with your hands at your sides. Please- just don't cross your arms and go into "yoi" position! I trust that you are not a moron!


This will do. The angle at which the body is facing the would-be attacker has most of the vital organs out of line of fire and the hands, although they appear to be non-threatening, are already in place to attack or defend or necessary.

Now- it would be the ideal scenario for court if you did not strike the first blow, but we as martial artists know that playing the passive role is not always a good idea. We know that whenever an attacker is within attacking range the one who hits first will most likely be the one whose blow lands as well and who then gets the biggest chance to gain control of the confrontation. So- don't fret. If you really can't flee and your attacker is close enough for you to smell his breath, but he has not yet started hitting you, feel free to break that nose and run a away while his head is still tilting back.

Because this article is only about staying within the confines of the law when defending yourself I am not going to go into aspects such as discretion and any particular self defense technique. I do hope, however, that it will prove useful to those among us who have been wondering about the extent to which the Law allows us to use our techniques for our protection and that of others in society.

This post is also going to appear on my firm's Facebook page and- if I get the sharing right- on its blog.

Stay well and enjoy your weekend!    
 
 


No comments:

Post a Comment