A Reasonable Apprehension of Danger; Two Stories Involving When Self-Defense is Justified (Update: Proposed Fix?)
[Guest post by Aaron Worthing; if you have tips, please send them here.]
In the law of self-defense, it is not typically necessary to prove you (or another) were actually, currently in danger. It is only necessary to prove that you had a reasonable belief that you were in danger. So, for instance, if a man comes at you with an unloaded weapon, and you do not know it is unloaded, you may shoot and kill him in self-defense. The key to this is that you can only excuse a mistake of fact—a mistaken belief that you are in danger. By comparison, if you make a mistake of law, that is no defense to any crime (except a few federal crimes which are irrelevant, here).
One issue that has come up is whether you can legally justify homicide or other violence in defense of others, if that other person is in fact a fetus. If you accept that a fetus is a person, it makes a certain degree of sense, but whether you like it or not, abortion is legal and the correct way to change that is through peaceful means, not by murdering every person who carries out an abortion.
So this morning Mother Jones created something of a stir when they alleged that some South Dakota lawmakers were attempting to do exactly that—to make it lawful to kill an abortionist in order to prevent a lawful abortion. Then over at the Plum Line, Greg Sargent actually gets in touch with one of the bill’s sponsors, and asks him what the bill is supposed to do:
I just had a spirited conversation with the bill’s chief sponsor, State Representative Phil Jensen, and he defended the bill, arguing that it would not legalize the killing of abortion doctors.
“It would if abortion was illegal,” he told me. “This code only deals with illegal acts. Abortion is legal in this country. This has nothing to do with abortion.” In other words, since abortion is not “homicide,” the law could not apply.
So basically if it’s a legal abortion being performed, it doesn’t count. But on the other hand, if it a doctor forcing a woman to have an abortion, a boyfriend beating on a woman’s stomach to kill their child, etc. then you can even kill a man in an attempt to prevent that fetus from dying—even if there is little danger to the mother. Or so he says.
But whatever his intention is, the law does a poor job of expressing that intent. Here’s one proposed revision:
Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to harm the unborn child of such person in a manner and to a degree likely to result in the death of the unborn child, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.
And meanwhile they propose to amend another statute as follows:
Homicide is justifiable if committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, or the unborn child of any such enumerated person, if there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.
So what is wrong with these proposed statutes? There is nothing exempting conduct that constitutes abortion. And I have searched the existing chapter, and I see nothing else that would suggest an exemption. So for instance, the first statute could allow a husband to resist a doctor’s attempt to carry out a lawful abortion, given that it would “harm the unborn child” of his wife “to a degree likely to result in the death of the unborn child.” There isn’t a word suggesting that the defense would not be available when an abortion is being performed with his wife’s consent. As for the second proposed revision, it is ironically the provision of the statute that pre-existed this proposed language that allows for the defense of a fetus to allow for the killing of even persons performing a lawful abortion, for homicide is justified if committed when “there is reasonable ground to apprehend a design… to do some great personal injury” to an unborn child.
Further, in another context, the statutes do an excellent job exempting abortion. In the statute addressing “fetal homicide,” it specifically says “[t]his section does not apply to acts which cause the death of an unborn child if those acts were committed during any abortion, lawful or unlawful, to which the pregnant woman consented.” And that in some ways makes it worse in relation to the proposed statutes, because it shows that they knew how to exempt abortion when they wanted to.
But at the same time, instead of denouncing these people let’s notice the fact that to some extent the statute was already this way. Even without the abortion related language, for instance, you could cite the second statute as allowing for you to murder a person for engaging in a boxing match. After all, in boxing, there is a design to do great personal injury, right? And a cop lawfully using deadly force on a suspect is simultaneously designing to do great personal injury; but you cannot lawfully shoot a cop in order to save a criminal from being shot by a cop. So you have to think that regardless of the literal wording of the statute, that the South Dakota courts have read it to only allow you to stop unlawful conduct, not just any conduct and perhaps the people who wrote this legislation intended to rely on that kind of “judicial creativity.” But we shouldn’t rest on that.
So let’s be positive and suggest a simple revision to fix it. The simplest way to do it is to add a portion under each statute, or a new section, that states something close to this:
The defense of justifiable homicide is not available to protect the life or health of another, if the danger is to the life or health of an unborn child and those acts were committed during any abortion, lawful or unlawful, to which the pregnant woman consented.
Now feel free and pick apart my suggested language, but that seems to be close to providing a way to solve the problem. And instead of various analysts and activists, screaming at the South Dakota legislature and darkly suggesting that they are trying to legalize the murder of doctors, maybe instead present a suggestion like this, that accomplishes the lawful goals that South Dakota was pursuing, and then see if they accept that revision. And if they refuse to adopt it, or something like it, then raise your hissy fit as appropriate.
And for the love of God, Greg Sargent, spare us the fear that the mere passage of the law protecting a woman from having her unborn child taken from her by force, might inspire the murder of doctors who perform lawful abortions. Sheesh. And let’s not forget what the legal regime liberals had advocated have led to, quite directly.
Meanwhile, in a tenuously related story, we learn via the Guardian that one of the people who told the U.S. that Saddam had Weapons of Mass Destruction admitted to lying. Here’s his mea culpa:
Rafid Ahmed Alwan al-Janabi, codenamed Curveball by German and American intelligence officials who dealt with his claims, has told the Guardian that he fabricated tales of mobile bioweapons trucks and clandestine factories in an attempt to bring down the Saddam Hussein regime, from which he had fled in 1995.
“Maybe I was right, maybe I was not right,” he said. “They gave me this chance. I had the chance to fabricate something to topple the regime. I and my sons are proud of that and we are proud that we were the reason to give Iraq the margin of democracy.”
For years, the left has chanted “Bush lied, soldiers died” (funny how they never considered that to be rhetoric that might encourage violence). And I always asked the question, assuming someone lied, why do we assume it was Bush? Couldn’t it be the case that Bush was himself fooled? Here we get confirmation that at least one man did exactly that.
As I said in the beginning of this piece, the justification of the invocation of self-defense—or the defense of others—is determined by the facts as they were known at the time. If this man really did lie, then why is it unreasonable that we believed him?
[W]hether the collapse of the Soviet Union should be considered a good thing is a separate question. Certainly everyone (except the despots) welcomes the end of totalitarian regimes, though some of the former Soviet republics have remained thoroughly undemocratic, and Russia itself has moved strongly back in that direction. Then, of course, there was the enormous human cost to the collapse (increased mortality, a decline in longevity, and massive economic and thus human dislocation and suffering). Finally, certain other world-historic crimes, such as the U.S. war of aggression against Iraq, are unlikely to have occurred if the Soviet Union had remained intact.
So we learn that the motivation for this supposed “crime” might very well have been the hope for democracy for the Iraqi people. But then the fact that Leiter thinks that keeping millions of people in bondage is ever a good thing tells us all we need to know about him.
Hat tip: Hot Air on the Guardian story.
Update: As you guys saw, I proposed my own fix to the justifiable homicide law. Well, at the Plum Line link, the bill’s sponsor offered one, too:
UPDATE, 12:43 p.m.: Jensen tells me he is considering the following change to the language of the proposal (the new part is in bold):
Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to harm the unborn child of such person in a manner and to a degree that is unlawful and likely to result in the death of the unborn child, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.
That would make it clear that “justifiable homicide” can only apply in response to an unlawful act, which would obviously not include abortion, which is legal.
So it seems they are now recognizing an ambiguity. Good for them. Although you will notice there are still problems with the law that are not solved.
[Posted and authored by Aaron Worthing.]