From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: The Gardener story (and relevance)
Organization: Who, me???
Date: Fri, 11 Dec 1992 17:21:16 GMT

In article <1992Dec9.223916.20466@netcom.com> gordons@netcom.com (Gordon Storga) writes:
><1992Dec7.033016.13629@rotag.mi.org> kevin@rotag.mi.org (Kevin Darcy) writes:
>><1992Dec6.054626.4176@netcom.com> gordons@netcom.com (Gordon Storga) writes:
>>><1992Dec5.194835.7990@rotag.mi.org> kevin@rotag.mi.org (Kevin Darcy) writes:
>>>><1992Nov30.050942.10250@netcom.com> gordons@netcom.com (Gordon Storga) :
>>>>><1992Nov30.020950.1372@rotag.mi.org> kevin@rotag.mi.org (Kevin Darcy) :
>>>>>><1992Nov29.211552.3815@netcom.com> gordons@netcom.com (Gordon Storga) :
>[a lot deleted - if anyone's interested I can repost it.  why do I feel
>that no one will ask...]
>
>>>In fact, Doug hasn't answered at all.  My intent was clear - Doug
>>>stated that the fact the the fetus resides inside the person does not
>>>justify the injury and death that occurs by it's removal.  My analogy
>>>was not an attempt to address current self-defense-from-rape laws, it
>>>was to show that we (society) currently recognize that a person can use
>>>force (up to and including lethal force) to prevent someone from
>>>commiting assualt upon them (this covers rape).  
>>
>>More and more confusing, Gordon. Are you now trying to forge a distinction
>>between what "society" thinks of lethal-self-defense-from-rape, and what the
>>"law" thinks of lethal-self-defense-from-rape? 
>
>Any distinction exists only as long as it takes society to change the
>laws.
>
>>                                               If not, then I find that last
>>sentence to be self-contradictory. If so, then in what way do you suppose 
>>that society's wants and needs are not reflected in the law?
>
>In any way that society feels is unjust.  It just takes awhile for the law
>to catch up.

Are you saying that lethal-self-defense-against-rape is morally acceptable,
and the law is just playing catch-up?

>>                                                             Or are you 
>>trying to generalize to ALL deadly responses to non-deadly threats? I don't
>>believe ANY of those are legally condoned.
>
>Condoned?  No, there are no statutes which say that the governments
>recommend that you kill your attacker.  However, there have been cases
>where deadly force was used in defense of oneself or another in peril.
>These defenses have been deemed appropriate by the court.  May I also
>remind you that a jury has the final say as to how a law may be applied.
>(this according to the consitution, however, most judges try to negate
>this constitutional right and duty - see FIJA for more information).

I think I've seen those discussions on the Net, Gordon. Fact is, though,
legal tradition holds that juries may interpret FACTS, but judges generally
interpret LAWS. This is a question about whether the LAW allows lethal
self-defense against rape, so the vicissitudes of juries aren't really
relevant.

>>>The "unrestricted"
>>>aspect applies when a women who succesfully defends herself by killing
>>>the rapist.  Obviously there is an inquiry and the rapist's family may
>>>attempt to bring charges against the woman.  At no time though during
>>>the rape is the woman prevented by court order or police restriction
>>>from using whatever means is available to her to defend herself.
>>
>>No special court order is necessary, Galen, if the act of killing the rapist 
>
>It might help your credibility if you at least pretended to know who you
>are talking to.

Oops, sorry. When you start to waffle, it's easy to get you confused with 
the other G*n.

>>violates statute. As for "police restriction", if there is a policeman 
>>present, he or she has a duty to prevent or terminate ALL violations of the 
>>law, whether that be the rape itself OR the killing the rapist by the woman. 
>
>A policeman who prevents a woman from defending herself from rape would be
>tried as an accomplice.
>
>>So this all boils down to, is it legal to kill a rapist in self-defense? I've 
>>seen no evidence that it generally IS legal, therefore I don't consider the 
>>analogy valid.
>
>And I don't really give two figs if you find it valid or not.  It is
>valid up to a point, as I explained.  It is legal (as in not-illegal)
>to use deadly force in some instances of self-defense.  It is up to a
>DA to determine if charges should be brought against the victim in that
>case.  Then it is up to a jury to decide if the force was excessive.
>
>If you really feel that a woman being raped should not be able to use any
>and all force necessary to stop her attacker then I pity you and your
>relationships.  

Now, that's a straw man, Gordon. I never said she "shouldn't", I said it
might be technically illegal. There's a huge difference between those two
statements.

>If you do feel that a person may use deadly force to stop
>personal assault IN SOME CASES then why are you arguing with me?

Because, as a matter of law, I think deadly force is only generally 
acceptable in the face of an immediate threat of death, or where the
person pleading self-defense reasonably believed there was an immediate
threat of death. "Reasonable" is a relative term, though. A woman being
raped doesn't have access to expert medical opinions, sonograms, blood
tests, etc. What's "reasonable" for her must be given wide latitude in
that case. A pregnant woman, however, generally has access to all of these 
things. She KNOWS, beyond a reasonable doubt, if and when her life is in
immediate danger from a problem pregnancy, and she can act accordingly.
That high level of knowledge gives her more control over the situation AND 
more responsibility for the consequences.

>Just answer me this:  If a woman who was being raped at knife point
>happened to get one arm free and smacked her assailant in the face with an
>open palm in an upward motion as hard as she could, which resulted in
>shoving his nose bone into his brain killing him...  would you want to
>throw this woman in jail?  Would you want her even on probation?  What
>"crime" did she commit?  Is she a danger to society?  If she ended up in
>jail would you feel it was an injustice?  If she ended up free would you
>feel it was an injustice?

Her actions probably wouldn't bother me. And I doubt you'd find a jury
that would convict her, although an overzealous prosecutor might be able
to get a conviction, purely on the legalities of her action.

I'm not arguing that lethal self-defense against rape is WRONG, Gordon.
I'm just arguing that it's a lousy analogy to the legalities of abortion.

								- Kevin
Newsgroups: talk.abortion