FYI- Use of Deadly Force in CA Law
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|Tue, 03-18-2008 - 4:13pm|
This is a paste from California Penal Code, Section 197-199, which deal with the instances in which homicide is legally acceptable. I know that all states look at it differently but Kathleen pointed out that no actual laws have been posted on this issue so I decided to take it on. Sorry it's so long. See my comments within. The last part is hugely important. Link posted at the top:
"197. Homicide is also justifiable when committed by any person in
any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,"
I think we can say rape, being a felony and likely causing great bodily injury, falls into this category clearly.
"2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
This is a little stickier, but we're not really discussing killing someone who enters the house with the intent of raping someone. That's more of a side issue, but I wanted to post the law in its entirety.
"3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
So if you're trying to protect someone else engaged in the struggle, they must have made some effort to decline the struggle before you killed their assailant. Lots stickier and harder to prove.
"4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
Pretty clear. Read on:
"198. A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone."
Boy, this changes things somewhat. So now you have to prove that the person came in/attacked someone else with the express intent of committing a felony or causing great bodily injury. Very hard to prove.
"198.5. Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred."
Okay, so it's different when it's your own residence. That makes sense.
"As used in this section, great bodily injury means a significant
or substantial physical injury."
Do you think pregnancy resulting from rape is included in this definition? I doubt it.
"199. The homicide appearing to be justifiable or excusable, the
person indicted must, upon his trial, be fully acquitted and
So, this part is very important. A woman who kills her attacker who has attempted/succeeded in raping her must be arrested, charged, indicted, placed into custody, held until bail is set and paid or the trial, at which point her lawyer will attempt to prove that, per California PC 197.1, she committed homicide in self-defense. It doesn't seem cut-and-dried at all to me. Look at the phrase "appearing to be justifiable or excusable." I assume that means "appearing" to the jury, since most criminal cases have juries. I have served as a jury foreperson on a criminal case and I can tell you that these people are not always in favor of following the court process. We had a mistrial, partially because there was one juror who said, before we entered deliberation, that he would make it a mistrial no matter what. You'd cringe if you heard some of the arguments I heard in the deliberation room.