Approachment To The Homicide In Self-defence With Four Different Perspectives

There is a growing number of homicides over the past years, and the main argument when considering these homicides is whether the killing is justified under the self-defence. In Canada, there were 548 homicide victims in 2012 with the homicide rate of 1.58 per 100,000 population. Then after four years in 2016, 611 people were homicide victims with the homicide rate of 1.68 per 100,000 population (Statistics Canada). In accordance with the increasing number of homicides, there is an on-going argument discussing whether this excessive force performed by defendants, especially “killing”, is acceptable when it comes to the self-defence. There are mainly four different approaches to determine people’s criminal responsibilities.

To briefly introduce those four perspectives, the first approach is the traditional-legal perspective. This perspective majorly alleges that he/she need to understand the reasons for the actions in order to understand the action itself.

The second perspective is the psychological perspective. This perspective is deterministic arguing that “malfunctioned parts” of human result him/her in committing crimes. In addition, since malfunctioning is not people’s intention, it alleges that criminals could be punished, but should not be blamed for their criminal actions.

The third perspective is the rational actor perspective where it mainly alleges that it is the social context of individuals where rationality is revealed. To be more specific, it says that if we understand the context properly, we can understand the actions as rational.

The last approach is the subjectification in which it alleges that mentality and mind are structured by social history.

The main argument of this paper is that solely relying on one approach when determining individual’s criminal responsibility for killing under the self-defence is not enough that it is better to combine multiple approaches to make better judgements. The paper constitutes two main argument paragraphs followed by the conclusion which wraps up the most critical points made in this paper. One of the paragraphs argues the limitations or critiques of each perspective with the scholarly articles that support the argument. Then, the other paragraph mainly talks about the positive effects of combining multiple perspectives depending on the circumstances in certain cases. There are some examples that can further enable readers to understand the positive effects of the combination of multiple perspectives. Lastly, the conclusion re-states the thesis statement as well as wraps up the core arguments made by this paper.

Four perspectives, which can be used when determining individual’s criminal responsibility for killing under the self-defence, are traditional-legal perspective, psychological perspective, rational actor view, and subjectification. Then, there are certain limitations for each perspective.

First, the traditional-legal perspective mainly argues that it is necessary to understand the reasons for the action in order to understand the action itself. The three key factors that traditional-legal perspective mainly considers are reason, will, and emotion. To be more specific, this perspective argues that people commit certain actions with their reasons, will, or with their emotion. In other words, this view does not consider psychology, social context, or social-historical context of individuals. For instance, in the case of battered woman syndrome where repeatedly assaulted woman kills her spouse who is not posing any threat to her at that moment, the traditional-legal view does not consider the fact that the woman has been repeatedly assaulted by her spouse. If the judgement is solely based on the traditional-legal perspective, although the woman has been consistently attacked by her spouse, since the spouse was not posing any threat to her at the killing moment, the woman’s killing action is not justified under the self-defence. The fact that the traditional-legal perspective does not consider any outside interventions including psychology or social context of individual, means using only this perspective when determining individual’s criminal responsibility is not enough.

Secondly, the psychological perspective is very deterministic that this view mainly argues about “machine analogy”. Specifically, it argues that malfunctioned “parts” of the body which produces “will” of individual, result people in committing crimes. Based on the psychological perspective, since malfunctioning is outside individuals’ will, criminals could be punished but they should not be blamed for their action. The main critique of the psychological view is that it is sometimes extremely deterministic. If the judgement of individual’s criminal responsibility is solely based on the machine analogy, every criminals’ responsibility could be lowered. For instance, if an individual is accused of either first or second degree of murder, his/her criminal responsibility could be reduced to manslaughter based on the machine analogy. This could make the criminal justice system more naïve in the future.

The third perspective is the rational actor view. This mainly alleges that it is the social context where rationality is revealed. To be more specific, if it is able to understand the context of individual properly, then he/she could understand the actions as rational. Similar to psychological view, this perspective creates more possible spaces for criminals to make an excuse, making the criminal justice system more naïve in the future.

Lastly, the subjectification alleges that subjectivity is the social creation. In addition, this view claims that mental structures are produced by social-history. To be more specific, it argues that social history makes the structures of mind. Basically, the psychological perspective and socio-political perspective have similar critiques that claim that both perspectives could make the criminal justice system more naïve, making more spaces for criminals to make an excuse and to make their levels of criminal responsibility lower. There was a case in which the woman had caused the bodily harm to the victim. However, the victim was not the person who initially attacked her. There was another person who had attacked her originally, but her outburst emotion made her cause the bodily harm to the victim who was standing next to the initial attacker (Gritter, 2012, p. 456). The defendant stated that her action should be justified under the self-defence, but the court had rejected her appeal stating that “a defendant who acted in an excessive response to an attack on a highly valued interest a response which was embedded in strong emotions that resulted from the attack.

This is not dealing with a ground for justification, but with a highly personal ground for exculpation” (Gritter, 2012, p. 459). In this incident, it is able to say that the decision made heavily relies on the traditional-legal perspective, because the decision does not consider other possible outside interventions. With psychological perspective, it could be said that the defendant had the malfunctioned emotion in her body which had caused her to outburst her emotion and cause bodily harm to the third party. With rational actor perspective, the level of received threat is different for each individual that the threat received by defendant from both initial attacker and the third party could be a high level of threat. The judgement in this case, therefore, did not consider individual’s psychology as well as the social context. If every aspects of each perspective were considered, the determination of the defendant’s criminal responsibility would be much fairer than the already made one. Moreover, there was a university student who, without any provocation, stabbed the security guard with the knife. The security guard thought he was overpowered by the student that he pulled his gun out and shot him causing the student’s death (Dowling, 1998, p. 263).

According to Dowling (1998), the three conditions needed to make the killing justified under the self-defence were “(i) the defender's death must seem to him/her to be imminent; (ii) there must be a choice forced upon the defender between being killed or killing his/her attacker; (iii) the responsibility for (i) and (ii) must be the attacker's” (Dowling, 1998, p. 262). These conditions, however, are very ambiguous at some points. For the second condition, it is hard to recognize whether the forced choice made by the attacker was intentional. Then, Dowling concludes his article by saying that killing under the self-defence is circumscribed (Dowling, 1998, p. 273). The statement saying killing under the self-defence is circumscribed means that it is necessary to consider all four perspectives when determining individual’s criminal responsibility which well-supports the main argument of this paper.

There are several scholarly articles arguing that it is necessary to combine traditional-legal perspective with either psychological view or socio-political perspective to make the fairer judgement when determining individual’s criminal responsibility. According to Stephen White (1971), there was an incident where Cascoe shot and killed F. Initially, F was pointing a gun at Cascoe, but Cascoe took the gun from F, and pointed at F. F and his friends, who Cascoe knew that they always held knives with them, shot and killed F when they were approaching toward Cascoe. The court did not accept the justification of killing F under the self-defence because the threat Cascoe got at that moment was from F’s friends, not F (White, 1971, p. 106).

The decision heavily relies on the traditional-legal perspective because it does not consider the social context or social-history of individuals involved in the scene. The decision made was not wrong, but the reason made for that decision was not enough. The initial actor who threatened Cascoe was F. Then, Cascoe knew that F’s friends, who always held knives with them are dangerous. With rational actor view, considering the fact that F and his friends were approaching at Cascoe, it is reasonable for Cascoe to believe that they are both threatening his life at that moment.

Similar to rational actor view, the subjectification perspective would argue that historically speaking, Cascoe knew that both F and his friends were dangerous that potentially they would threaten his life. If the judgement was based not only on traditional-legal view, but also with socio-political view, Cascoe would be either acquitted under the self-defence or would be accused to lower criminal responsibilities including manslaughter. Therefore, the Cascoe incident shows the positive effects of combining traditional-legal perspective with socio-political perspective. Furthermore, Seumas Miller (1993) argued about the three conditions for the justification of the killing under the self-defence, and the first two conditions were “(a) the defender cannot disarm the attacker without either putting his own life at risk or incurring serious harm to him/herself, or; (b) the defender’s disarming of the attacker will not remove any future threat posed by the attacker to the life of the defender” (Miller, 1993, p. 335).

These two conditions are related to both psychological perspective and rational actor view. The first condition which is that the defender’s own rational belief that disarming attacker without putting his own life at risk or incurring serious harm to him/herself would be impossible, is more likely to be considered as the rational actor view. On the other hand, the second condition is very similar to the battered woman syndrome. This psychological belief that disarming attacker now will not remove future threat could contribute to the defender killing the attacker. Therefore, Seumas Miller mainly argues the needs for the combination of psychological perspective and rational actor view. Interestingly, I found two authors who wrote contrasting articles about killing innocent aggressor/threat under the self-defence. According to Otsuka (1994), an innocent aggressor is “a person who poses a danger to your life because she is acting from an intention to kill you” (Otsuka, 1994, p. 74) whereas an innocent threat is “a person whose mere movements qua physical object or mere presence constitutes a threat to our lives” (Otsuka, 1994, p. 75).

An innocent aggressor could be caused by outside interventions including someone putting aggressive drugs in someone else’s coffee. Otsuka mainly argues that the innocent threat and the innocent aggressor should be treated same as the bystanders that killing those innocent threats/aggressors should not be justified under the self-defence. On the other hand, Jonathan Quong (2009) holds his perspective that the innocent aggressors/threats are not the same as the bystanders (Quong, 2009, p. 514). To be more specific, the killing innocent aggressors/threats under the self-defence should be justified whereas killing bystanders under the self-defence should not be justified since they are not the same. It is able to say that Otsuka heavily relies on the subjectification view whereas Quong holds the traditional-legal perspective. For instance, Quong strongly argues that the fact that, innocent threats/aggressors threatened the defendant, does not change that the killing them under the self-defence should be justified, which is the traditional-legal understanding of the mind. By looking at these two authors, it is able to say that combining these two traditional-legal perspective and socio-political perspective makes the better and fairer determination of the individual’s criminal responsibility of killing under the self-defence.

Lastly, Solmon (2017) claims the three necessary conditions for the threats to be criminally liable. They are the conditions where killing should be instrumental, necessary, and narrowly proportionate (Solmon, 2017, p. 126). The meaning of the killing being instrumental is that killing the threat should mean achieving certain goods including saving his/her life, which is psychological perspective. The meaning of the killing being necessary is that the defendant cannot escape from the death unless he/she kills the threat, which is based on rational actor perspective. Lastly, the killing being narrowly proportionate simply means that the achieving goods should be proportionate to the harm that could be done to the defendant. These all three conditions are the combination of psychological view and the socio-political perspective. Therefore, the author strongly claims the needs for the combination of multiple perspectives.

The judgement of individual’s level of criminal responsibility of killing under the self-defence could be determined by using one of the four main perspectives which are traditional-legal perspective, psychological perspective, the rational actor view, and the subjectification. In the court cases mentioned above, despite the fact that each perspective has its own weaknesses or critiques, it is more likely that only one of the four perspectives was heavily used to determine the criminal responsibility of individuals. In the past where there were lack of knowledge for psychology or lack of understanding social context of individuals, the traditional-legal perspective was heavily used in the court to judge people’s criminal responsibility. Today, however, there is a number of researches arguing specifically about killing under the self-defence with authors’ different perspectives. Since there are some limitations for each perspective, it is necessary to use factors of multiple perspectives to better understand or judge individual’s criminal responsibility of killing under the self-defence.