From: bressler@iftccu.boeing.com (Rick Bressler)
Newsgroups: misc.legal
Subject: Re: Re: 4 Q's: Deadly Self-Defense Against Rape
Date: 17 Nov 92 19:51:22 GMT
Organization: Boeing Commercial Airplane Group

> 1) Is it generally true that deadly self-defense is allowable
>    against rape, even if the (rape) victim's life doesn't appear to be
>    in any immediate danger? I've seen some extracts from the Model
>    Penal Code (see Section 2.04. Use of Force in Self-Protection. (2)
>    (b)) that seems to suggest that it _is_ generally allowable, but
>    the Black's definition of "self-defense" ("..., but it is never
>    reasonable to use deadly force against his nondeadly attack"),
>    along with some other sources, seems to suggest the opposite.

I'm not a lawyer.  I do have some opinions, largely shaped by Massad
Ayoob, the director of the Lethal Force Institute in New Hampshire.
This man and his organization are well respected by civilians and police
alike, both in the U.S and internationally.  Mas has been a police
officer, investigating officer and prosecutor.  He now spends quite a
bit of time as an expert witness in self defense cases.  As far as I
know he has never lost a case that he assisted in.  Based largely on
information supplied in his Judicious Use of Deadly Force series, this
is how I would interpret this:

First of all, I'd judge that nobody is going to submit to rape without
some sort of compelling reason.  Most often this is going to be the
threat of imminent death or grave bodily harm.  This immediately places
the victim in a classic self defense role.

Is there a threat of imminent death or grave bodily harm during rape?  I
would submit that yes there is, totally independent of whatever disease
the assailant may carry.  If the assailant is armed the threat is
obvious to (almost) any jury.  If the assailant is not armed, in most
cases there is still a clear disparity of force.  All you need is a half
ways decent lawyer that will take the trouble to educate the Jury.  (The
average male is able to break the bones of the average woman with his
bare hands for example.)  Grave bodily harm can consist of many things.
A slap on the face isn't grave bodily harm.  Hands around your throat or
a punch that could break bones is.  The amount of force necessary to
subdue a resisting woman can certainly be qualified as deadly force, to
which deadly force is the proper reply.

Disparity of force is very important here. In most cases, the disparity
of force between the average man and average woman justifies the woman
using weapons even if the man does not.  There are a few 'enlightened'
states where this might be harder to prove than others.

In general any time somebody is trying to restrain you, you are in grave
danger.  From a restrained position you are vulnerable to anything they
care to inflict on you, from rape to strangulation to a host of other
things I'll not bore you with.  In essence you are justified in
resisting being placed in such a position with any means at your
disposal, including weapons against bare hands if the attacker is
significantly larger/stronger than you as is the case with the average
man and woman.

The things that usually muddy up such cases are prior relationships
between the attacker/victim and so on.  If it were determined that the
attacker was guilty of (attempted) rape but victim used excessive force,
the victim probably chose very poor lawyer, it really shouldn't be an
issue.

Rick.