Like most areas of the law, personal injury cases are not as straightforward as they might initially seem. There are many grey areas that first need to be discussed thoroughly in court before a ruling can be met.
One grey area that needs to be discussed more often is that which blurs the lines between personal injury and self-defense. On one hand, the law discourages people from using force or violence against others, no matter the circumstances. On the other hand, the law also recognizes the natural reaction of wanting to defend themselves, and others, even when they are forced to use violence to achieve that end.
Now, the line must be drawn, especially when we consider that crime rates in SouthEast Asia are significantly higher than that of other Asian regions. The essence behind western self-defense laws and asian self-defense laws are similar, with a few differences as discussed below.
The Basic Elements:
The element of “unlawful aggression” is similar to the element of immediate danger in Western Laws. An act of unlawful aggression refers to a physical attack, or at least a threat of the same, to cause real injury to the defendant. The threat must be considered offensive and strong, and it must be significant enough to cause a reasonable person to believe that he is in real danger. A good example of such a threat is when a person points a gun at another. While there isn’t physical assault, the threat of a fatal wound is imminent and apparent.
Reasonable Necessity of the Use of Force
Another factor to consider is whether the use of force was necessary and reasonable. The reasonableness of force is determined through the appreciation of the facts incidental to the purported self-defense. Some factors include the nature and quality of the weapon used by the aggressor, his physical condition, size, and character relative to those of the defendant.
If it was deemed that lethal force was not necessary to neutralize the threat of the aggressor, self-defense cannot be claimed, as is with the case of Gregorio vs Nuezca, wherein an off-duty policeman shot and killed a senior citizen and her grandson during a heated exchange. The police officer could have easily subdued both victims without using lethal force. The act was also caught on camera by a bystander, which has also strengthened the case for the mandatory use of police body cams.
Lack of Sufficient Provocation of the Person Defending Themselves
Finally, the defense must prove that the attack was unprovoked. In the case cited above, (Gregorio vs Nuezca), while the victims did provoke the defendant, the defendant simply cannot claim self-defense because the force used was excessive relative to the threat presented by the victim. There was no way that the victims could have posed a threat to the defendant.
Note that these circumstances do not automatically justify a self-defense claim. The circumstances of each individual incident will create significant changes on the outcome of your case. Therefore, it’s still important to hire seasoned personal injury lawyers like the ones from Gina Corena & Associates to help settle your personal injury case.
Western Laws and their Asian counterparts share many common traits, with a different emphasis on various aspects of the case.