Friday, December 30, 2011

Self-Defense and Domestic Violence

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In a prior posting, I mentioned that most societies and religions justify the killing of an individual in cases of self-defense. Perhaps that was a broad swipe, because I thought it reasonable to assume the domestic violence resolution for Jan/Feb 2012, Lincoln-Douglas should focus on the use of deadly force in non-confrontational situations.  My assumption is, unless one is an absolute pacifist, a person who kills another to save a life is morally justified.  Of course, this means, a life is in imminent danger of being lost and deadly force is the only course of action possible to prevent the loss of life.  In reality, there are many implications to the assumption that can lead to difficulty.

A Look at the Legal Defense
Whereas, I do not think this resolution requires a discussion of the legal aspects of deadly force as a defense against domestic violence, I think debaters can do themselves a great favor by looking carefully at the legal issues swirling around such cases.  I recommend the following two papers published by the Moritz School of Law at The Ohio State University.  The papers are relatively short, written in easy to understand language, and very nicely explain the issues lawyers face when defending such cases. In particular, the non-confrontational, self-defense, when a domestic violence victim kills a sleeping (or otherwise, at the time, non-aggressive) abuser.

The first, by Professor Joshua Dressler of The Ohio State University and the second by Professor Joan Krause of the University of Houston.  One interesting set of facts illuminated in both papers, and quoted below from the Krause paper reveals,
"In reality, few battered women kill their abusers, and fewer still do so in nonconfrontational situations. While it is difficult to identify all such homicides, a comprehensive study of appellate cases from 1902 to 1991 in which female defendants claimed to have killed their abusive domestic partners in self-defense estimated that 20% of such killings (roughly 45 cases) were nonconfrontational, with 8% (roughly 18 cases) involving sleeping victims. These figures are roughly consistent with a more recent study of self-defense cases between 1979 and 1999 in which imminence was at issue, which found that approximately 9% of such killings were committed by battered women in nonconfrontational settings."

The Aquinas Point of View
Thomas Aquinas taught that killing in self-defense is only justifiable when the one defending him/herself does not intend to kill the aggressor.  This upholds a principle of double-effect in which there is an intended act to preserve one's life and an unintended consequence of killing the aggressor.  Since one has a moral right, perhaps even a moral duty, to preserve one's own life, if an aggressor is unintentionally killed while preserving one's life, the killing of the aggressor is morally justified. Nevertheless, the actions taken to defend oneself must be proportional with the force being applied by the aggressor.  Aquinas's reasoning then extends to the idea one responsible for the protection of others has a utilitarian duty to render an unjust aggressor incapable of inflicting harm.  Thus, those who hold legitimate authority such as law-enforcement and armies can be morally justified in killing aggressors.  Another aspect of this, of course, arises when one considers the moral justification for making a drone attack on a terrorist encampment.  If the terrorists are merely assembled and not actively attacking anyone, is such an attack a legitimate and morally justifiable act?  The United States government obviously believes it is justified on utilitarian principles since such groups usually have an expressed desire to kill innocents, have a history of having done so or attempted to do so, and whose continued existence represents a potential for future harm.

There are lots of parallels in the above discussion with the domestic violence resolution.  First consider if you are in a confrontation with an aggressor, it can be argued you have a moral imperative to preserve your life and so any action you take to fulfill that imperative is morally justifiable as long as it is a proportional response and you do not intend to kill the aggressor.  So what if the aggressor has a long history of being extremely aggressive and each time you believe your life could be lost?  Like the drone attack on their terrorist encampment, do you have moral right, perhaps duty, to kill the aggressor if he is not actively attacking anyone?  Does the moral justification increase if you were responsible for the lives of your children and they were also routinely abused?

Framing the Debate
All of the foregoing presents problems for the debater regardless if they are Aff or Neg because it breaks the issue up into small scenarios which forces one to argue whether certain acts are justified under a relatively narrow set of conditions.  In my opinion, it is important to avoid this kind of debate since there are seemingly endless scenarios and case-studies which can present all kinds of complications and moral dilemmas which make it very difficult to properly prepare arguments for or against.  In fact, this is probably exactly what a defense lawyer may wish to do in light of prevailing law, in order to create a unique situation for one particular case which somehow over-rides the general principles.  By doing so, the defendant's use of deadly force may be excused.  But as I noted in a previous post on this topic, just because someone is legally deemed excused or non-culpable, does not mean they are morally justified in their action and in fact, the law usually acknowledges that a crime was, nevertheless, committed against the aggressor.

Neg Framework Example
Following is an example framework aimed at setting up a broad paradigm for judge evaluation as  possible response to a self-defense reference:
"In fact, one of the —maybe the most— elementary of moral principles is that of universality, that is, If something's right for me, it's right for you; if it's wrong for you, it's wrong for me. Any moral code that is even worth looking at has that at its core somehow." Noam Chomsky, Responsibility and War Guilt, 2007 (
Taking a life is not morally permissible.  The right to life is an inalienable, natural right which becomes ours at birth. To deprive one of their life denies them of their natural right to life and is therefore morally not permissible.  The observation is made, while philosophically and legally, society may deem certain types of homicide under very limited situations as justifiable or excusable; the natural right to life is nevertheless denied and so morally not permissible.  Self-defense is one such scenario.  Whereas one may reasonably assume, killing, either intentionally or unintentionally as an act of self-defense provides an excuse for killing, it is not a moral justification since one can never know if the aggressor may have intended to suddenly cease his aggression or realize the "error of his ways" but was killed at the moment of realization.  Moreover, since one can never ascertain with any certainty whether the defender was acting out of intent to kill the aggressor or did not intend to kill even if it was foreseen his action would kill, we must conclude that viewing any act of murder as unjustifiable is the only universal principle that can be applied and debated.  If Aff is allowed to focus on any number of unique case-studies or narrow examples, it unfairly burdens Neg since it is impossible to research and prepare an answer to every possible presumed exception to the rule. Moreover, Neg holds that unless the debate focuses solely on universal principles of right and wrong, the justifications vary across jurisdictions, societies and religions and so under an open framework, one individual's crime becomes another's justice depending on cultural, or religious norms.  In the interest of fairness, Aff can not be allowed to hold to any framework of situational ethics.

Other Aff Arguments
Reading the Dressler essay, referenced previously, an interesting argument emerges that could favor the Aff.  Dressler suggests a viable defense for a person accused of killing their abuser could be built on the idea of "forfeiture of life".  This is the same philosophy which supports capital punishment. John Locke speaks of it and Hugo Bedau, writes many recent essays on the topic covering capital punishment (see:  or the book: The Right to Life, Hugo Bedau, (1968)) People create societies for mutual preservation of rights and so agree to give up certain liberties in exchange.  This is the social contract.  My freedom ends at the tip of your nose. I agree not to harm you and in exchange you agree to help me preserve my natural rights.  However, if I break my side of the contract, my violation can be considered so egregious that I forfeit my right to life.  When that happens I essentially cease to be human and so I may be killed without moral grievances.

Concluding Remarks
In general, it seems Aff will have the harder case to prove since the weight of law is against deadly force as a moral response to repeated domestic violence and most LD judges should be fully aware of many famous and perhaps regional cases of domestic violence.  In general, most societies will not tolerate vengeance killings, vigilantism or other forms of murder without "due process".  Self-defense presents a viable justification but perhaps only under a narrow framework and so Neg can prepare a specifically framed case to answer the "self defense" argument should it be the tact used by Aff.  As I write this, we are seven days from the first tournaments in our area which will run this resolution.  We shall soon see what comes of it and perhaps then it may be possible to address other ideas.

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