14 November 2011

Taekwon-Do and the Law

In preparation for my continued discussion on Taekwon-Do's value for civilian defence, I pulled the following article by Mr David Eades from the archives of The Sidekick¹ -- Issue #5, December 2006.

Taekwon-Do and the Law: The Legalities of Self-Defence
By David Eades

Image Source
Although different approaches to self-defence are covered in the dojang, seldom is the legal consequences contemplated. In this article by Boosabumnim David Eades he looks at the legal requirements for self-defence to stand up in the South African courtroom. This is the first in a series of articles centred on the theme: Taekwon-Do and the Law. – Editor.

The nature of Taekwon-Do opens the door to serious legal concern, in the next few articles I will attempt to discuss these issues and contemplate the possible legal situations that may arise both in and out of class. A responsible practitioner should be aware of his or her abilities and the consequences that may flow from using the art.

It is important to understand when criminal liability arises so I will discuss this first and then lead onto the topic of self-defence. To commit a crime the State must prove that there was a:

1. Voluntary human act or omission
2. that is unlawful,
3. intentional,
4. and committed by a person capable of committing a crime (capacity).

From the above it is clear that only humans may commit criminal acts and in certain situations it does not require a person to act, e.g. a parent has a duty to protect his/her child. The act must further be in breach of some law thus making it unlawful. You cannot be prosecuted for a law that does not exist or only existed after you committed the crime. Except for killing a person you may only be found guilty if you intended the consequences that occurred (even if you did not directly intend the consequence but only foresaw that they may occur), however for culpable homicide the court will accept negligence. As a Taekwon-Do practitioner your knowledge of the human anatomy and how to cause damage is heightened and the court will take this into account when determining whether you had the necessary foresight to have intended the consequences that occurred. Generally children below 14 years and people not capable of understanding their actions cannot commit a crime as they do not understand what they are doing, this strictly falls into the scope of intention.

Self-defence is a justification to committing a crime, basically you are saying, “Yes, I did commit a crime, but it was justifiable as it is in the defence of my own legally protected interests.” The self-defence action therefore renders the unlawful actions lawful.

To act in “legal” self-defence it must be in response to:
a) an attack,
b) upon a legally protected interest,
c) that was unlawful.

Therefore, the attack must have commenced or have been imminent against a person’s property, ‘life and limb’ or a third party. The attack must also be unlawful; therefore, the defence does not work against lawful infringements such as a lawful arrest.

Consequently the defence must be:
a) necessary to avert the attack,
b) a reasonable response, and
c) directed against the attacker.

In South African Law there is no absolute duty to retreat, however as Taekwon-Do students who are aware of their ability to cause damage this should generally be a first response. The best form of defence is to avoid the situation; however, there are certain situations where a person is placed in a situation where self-defence is the only option. If the attack has finished, self-defence will not justify one’s actions. The defence must also be proportional to the attack. This does not mean that if your attacker pulls out a knife you cannot pull out a gun, rather if your life is clearly not in danger you cannot in a response to an attack kill your attacker. The court will look at your actions and decide if your action was reasonable, therefore it is a subjective test that does not require strict liability. Finally, the defence must be directed at the attacker and not a third party. (An attack at a third party may be justified under the grounds of necessity but that is another article for another issue.)

Here are a few examples of when one cannot act in self-defence:

  • X, in attempting to rob Y, attacks Y but shortly thereafter realises he cannot overpower Y and abandons the attack. If while walking away Y attacks X, Y cannot claim that she was acting in self-defence because the attack had finished.
  • X, Y’s unruly but harmless friend, starts ‘play fighting’ with Y. Y cannot claim she was acting in self-defence if she causes serious damage to X because the defence was not proportionate.
  • If X approach Y but does not pose a serious threat, Y cannot pull out a gun and shoot X. The response must be reasonable to the attack. However if Y can prove that she reasonably felt that her life was being threatened by X she may rely on self-defence.
  • Where X attacks Y and Y throws a stone at X in self-defence, but misses and hits Z, a passer-by, Y cannot rely on self-defence to validate her actions. However, she may rely on necessity or the fact that she lacked the intention to cause Z harm.

In assessing whether a person acted in self-defence the court will look at the above factors and decide if the person acted reasonably or not. Remember, you are innocent until proven guilty and in all criminal cases the State must prove your guilt beyond all reasonable doubt, so it is more likely that you will be found innocent than guilty (unless you are guilty). If it turns out that the person did act in self-defence her actions will be seen as lawful and she will not be criminally liable.

In writing this article, I have relied heavily on Burchell, J. Principles of Criminal Law. 3rd Ed. Juta, Cape Town.


Footnote 1: The Sidekick was a quarterly eZine I edited for the SA-ITF. Because we did not receive enough regular submissions it was decided to suspend it indefinitely. The research and consequent articles I would have contributed to The Sidekick I now submit to Totally Tae Kwon Do magazine every month.

1 comment:

Ymar Sakar said...

Marc MacYoung recommended some detail orientated procedures as well. Such as learning how to explain and logically describe your actions in the police report. How the less you say, the better, since if you automatically claim self defense, then you must prove it and the state prosecution may just take that as a sign that they'll try for a prosecution on flimsy evidence, since your "confession" is already in the grand jury's police report.