FYI- Use of Deadly Force in CA Law

iVillage Member
Registered: 06-17-2007
FYI- Use of Deadly Force in CA Law
36
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:

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=86922924698+0+0+0&WAISaction=retrieve

"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
committed; or,"

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
the peace."

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
discharged."

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.




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iVillage Member
Registered: 10-17-2006
Fri, 03-21-2008 - 2:32am

~I even said that 2 was not in the US!~


I thought you'd meant #1, which also was not in the US.


~And, although not RAPE - they were instances of defence while using deadly force.~


To clarify, it was posted in response to a discussion re: rape, so I mentioned that.


http://messageboards.ivillage.com/n/mb/message.asp?webtag=iv-psabortdeb&msg=4531.25


~I have showed you the Ohio Castle law in which it is shown that deadly force can be used in protecting from rape.~


Yes, the law that hasn't passed.


~~I don't see where this is about self defense re:

 

iVillage Member
Registered: 02-04-2008
Thu, 03-20-2008 - 9:55pm

I even said that 2 was not in the US!


And, although not RAPE - they were instances of defence while using deadly force.


I have showed you the Ohio Castle law in which it is shown that deadly force can be used in protecting from rape.

iVillage Member
Registered: 02-04-2008
Thu, 03-20-2008 - 9:52pm

Based on your responces to my postings, honestly, I doubt you don't know any of what I mean or believe.


I do wish you a good day and good night - but totally disagree with the entirety of your post.

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iVillage Member
Registered: 06-17-2007
Thu, 03-20-2008 - 9:17pm

"Would you like me to go, have one attempt to rape me, and then shoot them, and go through the process in order to prove it to you???"

Well, if you don't mind...

Honestly, how can you continue to say that something occurs most of the time if you can't back it up?

"I mean, I know that I am an established LIAR and all"

In this debate, I have but called your arguments inconsistent and hypocritical. I don't believe I've called you a liar (although if you have a post to prove it, I will admit to it).

"- and that as a filthy American,"

You don't see the lack of logic in accusing an American of calling you a filthy American?

"woman hating PL,"

Did I ever say that you hate women?

"I cannot be trusted to KNOW anything or to have exprienced ANYTHING,"

When did I say that? I have only said that you cannot use your own experience as proof of the experience of the majority, and that I disagree with the idea that your experience qualifies you to dictate what other women are allowed to do with their bodies.

"or in the 34 years of my life be qualified to state anything without a challenge"

Are you an expert on it? Then no, your statement alone is not enough to satisfy me. And I hope you notice that I hold myself to the same standard. You notice that I was the one who started this thread to show evidence about deadly force laws, not you. The fact is that I am not a certified expert on anything except some facets of the journalism industry, Tudor England, and possibly World War II. And I don't claim to be one on other subjects, either.

"- that would require respect for another individual of which obvioiusly you have none or simply only a smidge of in regards to me."

Show me where, in my arguments, I have treated you without respect. I have quoted you directly in nearly every reply to you, cited evidence when you asked for proof, admitted when I could not find any, and have apologized when I have rarely said you said something you didn't.

"I am simply done with the obvious lack of respect and the constant doubt in me as a person, my honesty, and my experience."

I've already established that I do treat you with respect. Do you treat me with respect when you say that you're sorry that I don't see rape as the tragedy it is, when you know that I obviously do? As far as your honesty, again, I don't think I've ever called you a liar. As far as your experience, I highly doubt you would agree with me if I said, "I know what I know," so why should I do the same for you? It is not disrespectful to you to say that you have not shown to me that you have the expertise to make claims without support and that I do not agree with your ideas about legislation based on your experience.

If you dislike having your arguments picked apart and challenged, then why on earth are you on a debate board? I am here because I am a debater by trade, and I enjoy picking apart people's arguments and having them pick mine apart. The fact that I rarely give up on an argument means that I am a stubborn person who likes to argue with people and find that this board helps keep my skills sharp.

"I've given what is there - and told you and showed you that there is nothing on 'convicted in killing rapist' convicted in killing attacker, procecuted for killing raptist, etc....."

Perhaps your choice of search engine is faulty. Google, as you have said, is not perfect. Did you search court records in your city? I find it extremely hard to believe that no one has ever been charged with homicide in a self-defense case (regardless of whether they were acquitted). Besides, the onus is not on me to disprove your claim just because you can't find evidence in favor of it. If you're going to make a claim, within a debate, you're obligated to back it up. I tell my students the same thing.

"But what I have shown you is article after article of support from community, media and even law enforcement for women who have protected themselves."

Except, as Kathleen stated, none of these articles seem to involve a woman in the U.S. who was raped (or attempted) and defended herself. The ones outside the country don't seem to apply since I'm not talking about the court system in South Africa or the Phillippines. Why go to all the trouble of posting the actual links if you're then going to say that they're about something they are not about? I even posted comments about them (such as wondering why only one of them said that charges were not filed, when you indicated that was the majority of cases), but you failed to respond.

"If YOU think that a woman should allow a man to rape her instead of shooting him in self defence - then it is yours to practice."

Please carefully read this- disagreeing with your methodology in presenting your argument does not mean that I disagree with what you advise. I never, *ever*, said that I didn't think a woman should be able to defend herself from a man attempting to rape her. You could look in every post I've ever made and not find it, although you rarely go as in-depth in your replies to me as I do to you. To infer that is to be quite inaccurate. What I have said is that equating this to abortion after rape is illogical, inconsistent with your other arguments, and hypocritical when you consider what you criticize of the opinions of other people.

"I will not, and my faith in this nation, this people and the laws - as well as respect for my body (in which I guess killing a baby is ok, but not a man who would rape me to some)"

To whom? Who here has said that abortion is okay but you should not be able to defend yourself from an attacker? This is a debate board. Back it up.

"I will shoot first, better to face 12 than be burried by 6."

That's what I imagined a lot of abused women would say if their choice to abort was outlawed per your opinions, but you didn't see fit to respond to that. At least I make the effort to respond to the things you actually say, and not resort to repeated inferences about how I think or my "real" opinions on the subject.

The fact is that you know no more about me than my argumentation, and I know no more about you than the same. On an online board, where you don't know my specifics and you can't check me out, it can never be more. And you wonder why I won't take your opinions and experience at face value.

"Good day to you holly."

Based on what you've said earlier in this post, I honestly doubt you really mean that.




Edited 3/20/2008 9:28 pm ET by hollyelizabeth2007




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iVillage Member
Registered: 02-04-2008
Thu, 03-20-2008 - 8:38pm

Would you like me to go, have one attempt to rape me, and then shoot them, and go through the process in order to prove it to you???

iVillage Member
Registered: 10-17-2006
Thu, 03-20-2008 - 6:58pm

 

iVillage Member
Registered: 10-17-2006
Thu, 03-20-2008 - 6:52pm

 

iVillage Member
Registered: 10-17-2006
Thu, 03-20-2008 - 6:44pm

Just to clarify:


#1 a man shot him (not the victim as you claimed) and as mentioned not in the USA


#2 is in South Africa, not the USA


#3 is not in regards to rape


#4

 

iVillage Member
Registered: 10-17-2006
Thu, 03-20-2008 - 6:09pm

~When did I say NEVER???

 

iVillage Member
Registered: 06-17-2007
Thu, 03-20-2008 - 5:29pm

And this is supposed to prove what? Only one of these articles actually states that no charges were filed. I was in the journalism industry long enough to know that just because they don't say it doesn't mean it didn't happen. In fact, in one of the articles you posted (the one from the Phillippines), the man whose wife protected him seemed concerned that she might serve a sentence for it:

"When she saw Dupal-ag pick up a rock, she shot him. He died instantly.

Jesus hopes the law will take pity on his wife, who was only defending him."

Now, before you say that this incident did not occur in the U.S. and is therefore not applicable to your argument, I would like to remind you that you posted it. Therefore I gave it equal consideration.

And the quotes from Cicero, Jesus Christ, and Tenzin Gyatso are lovely and heartwarming, but none of them have a direct presence in the U.S. court system. Anecdotes and quotes are hardly proof of your claim that most self-defense cases are either dropped or lead to an easy acquittal.




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