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August 7, 2007

Self-Defense: Reasonable Beliefs or Reasonable Self-Control?

Interesting look at self-defense claims in criminal court. The author makes some excellent points..

Self-Defense: Reasonable Beliefs or Reasonable Self-Control?

Boston University - School of Law
Boston Univ. School of Law
Working Paper No. 07-14

Abstract: The reasonable person test is often employed in criminal law doctrine as a criterion of cognitive fault: Did the defendant unreasonably fail to appreciate a risk of harm, or unreasonably fail to recognize a legally relevant circumstance element (such as the nonconsent of the victim)? But it is sometimes applied more directly to conduct: Did the defendant depart sufficiently from a standard of reasonable care, e.g. in operating a motor vehicle, that he deserves punishment? A third category, which might be viewed as a subcategory of the second, has received too little attention: Did the defendant fail to act with the degree of self-control that can fairly be expected? Many criminal acts occur in highly emotional, stressful, or emergency situations, situations in which it is often both unrealistic and unfair to expect the actor to formulate beliefs about all of the facts relevant to the legality or justifiability of his conduct. A
"reasonable degree of self-control" criterion can best account for these contextual factors. Conventional criminal law norms often conceal the importance of "reasonable self-control," instead artificially applying cognitive or oversimplified conduct criteria.
In self-defense, for example, it is conventional to ask whether the actor believes, and whether a reasonable person would believe, each of the following facts: (a) an aggressor was threatening him with harm, (b) that harm would be of a particular level of gravity, (c) his use of force in response would prevent that harm, (d) the level of responsive force he expects to employ would be of a similar level of gravity, (e) if the force was not used, the threatened harm would occur immediately, and (f) no nonviolent or less forceful alternatives were available whereby the threat could be avoided. United States law typically requires an affirmative answer to each of these questions. Yet in many cases, an actor threatened with harm will actually have no beliefs at all about most of these matters. It would be unfair to deny a full defense to all such actors. At the same time, if we want to hold such an actor to a standard of "reasonableness" - and there are good reasons to do so - then we must reformulate the criterion as requiring a reasonable degree of self-control in response to a threat of force.

Keywords: Crime,
Criminal Law, Self-Defense, Justification, Culpability, Reasonable Person

JEL Classifications: K14

Working Paper

Simons, Kenneth W., "Self-Defense: Reasonable Beliefs
or Reasonable Self-Control?" . Boston Univ. School of Law Working Paper No.
07-14 Available at SSRN:

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