CRIMINAL LAW DEFENSE OF OTHERS: Homicide in the Name of Family



The law that gives one the right of self-defense also confers the privilege to act in defense of others whenever it is reasonable and necessary to do so. It would be unreasonable and unwise for a man to watch while his daughter or wife is being threatened in his presence with serious bodily harm or death, when he has the capability and privilege to prevent the harm; and when based on the circumstances, his wife or daughter has the right of self-defense. “One may do in another’s defense whatever the other might in the circumstances do for himself. (See Bishop, Criminal Law § 877 (9th ed. (1923))

The privilege to act in defense of others can be traced back to the law of property, where the right to act in defense of ones habitation and property, may be extended to the protection of ones wife, children and servants. Blood is thicker than water; family ties creates a special bond and association which makes a man responsible for the welfare and protection of his wife, children and others with whom he enjoys special relationship and friendship. Any member of the family has the privilege to defend another member; the master has the right to defend his servant, or the servant defends the master.

The privilege to act in defense of others in some cases may be based on the duty to do so; normally, a father has the duty to protect his child, his wife and members of his immediate family whenever it is necessary and reasonable to do so; and in some situations, the privilege may be extended to members of the household or others whom he is under a legal or socially-recognized duty to protect. (Restatements, Second, Torts §76, Comments e, f (1965)). A failure to act in defense of another when there is a legal and recognized duty to do so can make the actor to be both criminally and civilly liable to another depending on the facts of the case. Thus “a conductor is privileged to defend his passenger, and a person is privileged to defend a friend whom he is with at the moment”. (See Restatement, Second, Torts ibid).

In fact, in some situations, one may act in defense of a stranger when privileged to do so; (See Salmond, Torts 375 (11th Ed. 1953)); but despite the conferred privilege, the actor is required to act reasonably while doing so in defense of another; and just as in self-defense, he may not use deadly force in response to a non-deadly force to save another, and a non-deadly force must not be in excess of what is needed. (Restatement, Second, Torts at Comment b)).

While acting in defense of another, it is essential the one using the privilege acts reasonably by making sure the one he is acting to protect, is privileged to act in his own self- defense; in that case, the privilege is transferred to the actor. For example, if Abbe the aggressor and instigator pulls out a dagger and about to stab Betty to death, and Betty knowing her life was about to be over, pulls a gun and takes aim to fire as Abbe launches to stab her and Curtis, Abbe’s husband a sharp shooter, seeing the commotion from the window of his apartment, pulls his gun and shoots Betty to death to protect Abbe his wife; can Curtis claim the defense of other to avoid prosecution for the murder of Betty?

In most cases the answer is No for the following reasons; while Curtis may have the privilege to act in defense of his wife in prescribed circumstances, he can only do so if his wife Abbe, has the right to self-defense. In this case, Abbe is the aggressor and instigator, she began the events that led to the trouble in the first place and not only that, she responded to a non-deadly encounter with a deadly force; she introduced the dagger (deadly object) and for that moment, she has lost her right to self-defense. Therefore, her husband Curtis cannot act in her defense with a deadly force because for that moment the privilege no longer exists and cannot be transferred to him.

On the other hand, Betty possessed the right to self-defense the moment Abbe brandished a dagger with the intention to stab her to death; at that point Betty may respond with a deadly force of same magnitude (a gun). The only way Abbe could regain her right to self-defense is if she decides to end the encounter right away by withdrawing the dagger and conveying to Betty her intention to end the fight right there; and if the circumstances do not permit her to do so, she may have acted at her own peril because for those split seconds, Betty has the right to either save her own life by acting in self-defense or die with a dagger to her heart.

In essence, Curtis may be properly prosecuted for the murder of Betty; he was not in line of danger or fear for his own life, but acted on behalf of his wife with a deadly force, based on a privilege that no longer exists for the particular moment. Though, his intention was to save his wife’s life, he may have acted recklessly and unreasonably causing the unjustifiable homicide of Betty. If Curtis was in line of fire and acted to save his own life, or if Betty were the aggressor and had threatened his wife with a deadly weapon, the homicide would have been justified.

The point to take home is that one is privileged to act in defense of his/her wife, husband, children, family members, members of his/her household or even a friend, when it is reasonable and necessary to act in order to prevent a great bodily harm or death. However, in doing so, the actor must make sure the one he/she is acting to protect, has the right to self-defense; he/she must believe the intervention is necessary to protect the person and be certain the person he/she is acting to protect would be justified in using such a protective force. A death that occurs based on such a reasonable belief will not make the actor liable for the homicide.

Dr. Adeyemi Oshunrinade {E. JD] is an expert in general law; he is the author of ‘Wills Law and Contests,’ ‘Murder of Diplomacy’ and ‘Constitutional Law-First Amendment. Follow on Twitter @san0670.

Categories: Criminal act, Criminal Justice, Criminal Law, LAW

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