Is defending oneself from a sexual assult a defence for murder?
<p>A man forces himself on a woman with no threats of violence, no deadly weapon and he doesn't even hit her, he simply just physically overpowers her. This occurs in the kitchen and she is able to grab a knife and stab him during the assult, killing him. Let us assume she did not fear for her life, she acted only to end the assault, would that be murder, manslaughter, or simply self defense?</p>

<p><a href="/questions/tagged/colorado" class="post-tag" title="show questions tagged &#39;colorado&#39;" aria-label="show questions tagged &#39;colorado&#39;" rel="tag" aria-labelledby="tag-colorado-tooltip-container">colorado</a></p>
<h3>Short Answer</h3>
<p>This woman was engaged in legally permitted self-defense when she killed the man with a knife in the kitchen under Colorado law, and she has not committed any crime. Her conduct would also not provide a basis for a valid lawsuit for money damages against her.</p>
<h3>Long Answer</h3>
<p><strong>Applicable Law</strong></p>
<p>In Colorado's state criminal code, the relevant statutory section, Colorado Revised Statutes, § 18-1-704, states, in the pertinent parts (emphasis mine):</p>
<blockquote>
<p><strong>Use of physical force in defense of a person - definitions.</strong></p>
<p>(1) . . . a
person is justified <em>in using physical force</em> upon another person in
order to defend himself . . . and he may use a degree of force which he
reasonably believes to be necessary for that purpose.</p>
<p>(2) <em>Deadly physical force</em> may be used only if a person reasonably
believes a lesser degree of force is inadequate and: . . .</p>
<p>(b) The other person is using . . .
physical force against an occupant of a dwelling . . . while committing or attempting to commit burglary as
defined in sections 18-4-202 to 18-4-204; or</p>
<p>(c) The other person is committing or reasonably appears about to
commit . . . sexual assault as set forth in section 18-3-402, or in
section 18-3-403 as it existed prior to July 1, 2000.</p>
</blockquote>
<p>The referenced definition of burglary as relevant to this fact pattern is that:</p>
<blockquote>
<p>A person commits . . . burglary, if the person knowingly breaks an
entrance into, enters unlawfully in, or remains unlawfully after a
lawful or unlawful entry in a building or occupied structure with
intent to commit therein a crime against another person or property.</p>
</blockquote>
<p>Note also that it doesn't matter for purposes of the burglary statute, if this is her kitchen, or someone else's, so long as it is not his kitchen.</p>
<p>Also he need only be &quot;attempting to commit burglary&quot;, so even if he was trying unsuccessfully to get into the house and assaulting her from just outside a door or window, her use of deadly force to prevent burglary would be justified.</p>
<p>On the other hand, if he was lawfully present in the home (perhaps a husband or roommate), the burglary justification for the use of deadly force would no longer be present.</p>
<p>The referenced sexual assault statute states in the pertinent part that it is committed if:</p>
<blockquote>
<p>Any actor who knowingly inflicts sexual intrusion or sexual
penetration on a victim commits sexual assault if: The actor causes
submission of the victim by means of sufficient consequence reasonably
calculated to cause submission against the victim's will . . . [which
includes any case in which:] The actor causes submission of the victim
through the actual application of physical force or physical
violence[.]</p>
</blockquote>
<p>Even if he does not &quot;reasonably appears about to commit&quot; sexual penetration or intrusion (which are necessary for the crime to be sexual assault for purposes of the use of deadly force law in Colorado), unlawful sexual contact is a crime against a person in an occupied dwelling, so it constitutes burglary that justifies the use of deadly force, even if it doesn't constitute sexual assault.</p>
<p>Under these circumstances, the woman may use deadly physical force if she reasonably believes a lesser degree of force is inadequate to cause the rapist to cease committing sexual assault, <em>and any other crime against person or property</em> in the home.</p>
<p><strong>Application Of Law To Facts</strong></p>
<p>There is no reasonable doubt that the man is, at a minimum, in the process of committing burglary, and very likely sexual assault as well, although the language of the question is somewhat coy on this point as relevant to the Colorado definition of sexual assault.</p>
<p>He has proven himself capable of physically overpowering her efforts to resist him with non-deadly force without success. This demonstrates that non-deadly force was inadequate.</p>
<p>She used a knife to kill him for the legally authorized purpose of ending a burglary and probably also a sexual assault.</p>
<p>Therefore, her use of a knife to kill him is almost certain be a use of deadly force for purposes of self-defense which is permitted by Colorado law. As a result, she would not be legally guilty of any crime for killing him with a knife in these circumstances.</p>
<p>Incidentally, she would also have <a href="https://www.ncsl.org/civil-and-criminal-justice/self-defense-and-stand-your-ground" rel="nofollow noreferrer">no civil liability in tort for money damages in this situation in Colorado</a>.</p>
<p><strong>Application To Other U.S. States</strong></p>
<p>The exact wording of self-defense statutes differ from one U.S. state to another and I don't personally know every fine statutory detail of every one of them. But, Colorado's statute is quite typical. A state where her actions did not constitute legally justified in these circumstances would be an extreme outlier in U.S. law. I would be surprised if there was any U.S. state in which her actions would not constitute legally justified self-defense.</p>
<p><strong>Historical Note</strong></p>
<p>Suppose that the man in the question were the woman's husband in their own home where they were both lawfully present.</p>
<blockquote>
<p>Prior to the 1970s, marital rape was legal in every US state. It was
partially outlawed in Michigan and Delaware in 1974, then wholly
outlawed in South Dakota and Nebraska in 1975. The court case <em>Oregon
v. Rideout</em> in 1978 was the first in which someone stood trial for
raping his spouse while they lived together. By 1993 marital rape was
a crime nationwide.</p>
</blockquote>
<p>(<a href="https://en.wikipedia.org/wiki/Marital_rape_in_the_United_States" rel="nofollow noreferrer">Source</a>)</p>
<p>Under current U.S. law in every U.S. state, the sexual assault justification analysis would be no different because there is no marital immunity for the crimes of sexual assault, although the burglary justification would no longer be present, so an intent to commit unlawful sexual contact without penetration or intrusion would not justify the use of deadly force.</p>
<p>But, when marital immunity to sexual assault was part of the law, as it was in every U.S. state prior to 1974, and as it was in some U.S. states until 1993, she would be guilty of second degree murder or manslaughter.</p>
<p>The distinction between second degree murder and manslaughter in that case would hinge upon whether she had an intent to kill or only intended to harm (as in <a href="https://law.stackexchange.com/a/92909/9517">a case cited by Jen in her answer</a>). Also, she would have a good argument for manslaughter due to provocation by the victim that was not sufficient to justify the use of deadly force, even if jury concluded beyond a reasonable doubt that she did intent to kill him.</p>
<p>Colorado's self-defense statute (in a subsection omitted because it was not applicable to the facts in the question) also permits the grade of a criminal offense caused in the course of conduct intended as self-defense that does not meet the statutory standards for self-defense (e.g. because non-deadly force would have been sufficient) to downgrade the severity of the offense for which the person may be convicted, in a manner similar to the &quot;heat of passion&quot; defense.</p>
<p>But, these facts present no plausible justification for a first degree murder, which is often a charge punishable by death penalty or life in prison without the possibility of parole, since it was not premeditated or committed in connection with a crime by the perpetrator.</p>
<p>Realistically, under the circumstances of the question, if he was her husband and they were in their own home, during a time frame when there was marital immunity from sexual assault charges, she would most likely be convicted of manslaughter under these circumstances.</p>
<p><strong>Side Observation</strong></p>
<p>The U.S. Supreme Court has held in <em>Kennedy v. Louisiana</em>, 554 U.S. 407 (2008) that the 8th Amendment to the United States Constitution, directly and as incorporated against the states under the 14th Amendment, prohibits the imposition of the death penalty for a rape not resulting in death (even the rape of a child).</p>
<p>The death penalty has been unconstitutional in cases involving the rape of an adult woman in the U.S. since U.S. Supreme Court case of <em>Coker v. Georgia</em>, 433 U.S. 584 (1977).</p>
<p>There are many serious felonies (including some omitted from the Colorado statute above because they were not applicable to this fact pattern) for which the use of deadly force in self-defense is authorized even though the U.S. Constitution prohibits the use of the death penalty upon a conviction of that offense which does not result in someone dying.</p>

<h2>Probably</h2>
<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>
<p>Self-defence is defined in <a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s418.html" rel="nofollow noreferrer">s418</a> of the <em>Crimes Act</em> 1900.</p>
<p>The defendant would probably rely on ss418(2)(a-b). You are allowed to use reasonable conduct to (a) defend yourself, and (b) terminate a depravation of liberty. Both would seem to apply to the facts.</p>
<p>The only real question for the jury is if the conduct (stabbing the assaulted with a kitchen knife) was reasonable. That depends on the circumstances: if you stabbed and fled, almost certainly; if you stabbed and gloated for half an hour while the perpetrator bled out, maybe not.</p>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<h3>Self-defence requires that the act commmitted in response to the threat be reasonable</h3>
<p>The person claiming self-defence must have the subjective belief that &quot;a threat of force is being made against them or another person.&quot; Such belief must also be based on reasonable grounds. They must also act with the subjective purpose of protecting themselves or the other person from that use or threat of force. And the act must be reasonable in the circumstances.</p>
<p>This all comes from the text of the defence, codified at s. 34 of the <em>Criminal Code</em>. It reads:</p>
<blockquote>
<p>34 (1) A person is not guilty of an offence if</p>
<p>(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;</p>
<p>(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and</p>
<p>(c) the act committed is reasonable in the circumstances.</p>
</blockquote>
<p>Your scenario establishes that condition (a) is satisfied: the accused would believe on reasonable grounds that force is being used against them. Condition (b) also appears to be satisfied: you say &quot;she acted only to end the assault.&quot; The availability of the defence will turn on condition (c): whether &quot;the act committed is reasonable in the circumstances.&quot;</p>
<h3>Whether the act is reasonable depends on many factors, including the nature and proportionality of the response</h3>
<p>Section 34(2) says:</p>
<blockquote>
<p>(2) <strong>In determining whether the act committed is reasonable in the circumstances</strong>, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:</p>
<p>(a) the nature of the force or threat;</p>
<p>(b) <strong>the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force</strong>;</p>
<p>(c) the person’s role in the incident;</p>
<p>(d) whether any party to the incident used or threatened to use a weapon;</p>
<p>(e) the size, age, gender and physical capabilities of the parties to the incident;</p>
<p>(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of
force and the nature of that force or threat;</p>
<p>(f.1) any history of interaction or communication between the parties to the incident;</p>
<p>(g) <strong>the nature and proportionality of the person’s response to the use or threat of force</strong>; and</p>
<p>(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.</p>
</blockquote>
<p>Most likely, the only factors meaningfully at play will be (2)(b) (especially any &quot;other means available&quot;) and (2)(g) (the &quot;nature and proportionality of the person’s response to the use or threat of force&quot;), but all the factors are to be considered. When proportionality of the response is an issue, a typical jury instruction is:</p>
<blockquote>
<p>Keep in mind that persons who reasonably believe they are under attack may not be able to weigh with precision the exact measure of defensive action needed to repel the attack</p>
</blockquote>
<h3>Self-defence may be available as a defence in the circumstances you describe</h3>
<p>Depending on the totality of the circumstances, there could be a successful self-defence defence available. See a similar example from <a href="https://www.canlii.org/en/nu/nucj/doc/2021/2021nucj3/2021nucj3.html" rel="nofollow noreferrer"><em>R. v. Ameralik</em>, 2021 NUCJ 3</a>:</p>
<ul>
<li>Ms. A's spouse confronted her and threatened her in a small kitchen</li>
<li>Ms. A tried to stab him in the arm, but the blade slipped and pierced his lung and heart</li>
<li>Ms. A was charged with second degree murder</li>
<li>She was found not guilty of murder because she did not intend to cause bodily harm that she knew was likely to cause death</li>
<li>She would have been guilty of manslaughter if not for self-defence</li>
</ul>
<blockquote>
<p>Mr. Aaluk advanced toward Ms. Ameralik shouting that she should stab him, after their verbal altercation had escalated into physical violence. Perceiving an imminent threat to herself and her unborn child by a much larger Mr. Aaluk who had previously punched her in the stomach during her pregnancy, Ms. Ameralik grabbed the only weapon available to her, the sharp kitchen knife she had been using to prepare dinner and stabbed him once. Ms. Ameralik did not have to weigh her response to a nicety. Given her vulnerability, recognizing how physically outmatched she was, I am satisfied Ms. Ameralik’s use of force was not out of proportion to the threat of violence she was experiencing at the time of the incident.</p>
</blockquote>
<blockquote>
<p>No one factor in the test for self-defence is determinative and the whole relationship between a couple must be considered to determine whether the accused was acting in self-defence. I am left with no doubt that Ms. Ameralik suffered significantly for years as a victim of intimate partner abuse while in a relationship with Mr. Aaluk. Having carefully reviewed the criteria above within the context of the history of violence, I am not satisfied beyond a reasonable doubt that Ms. Ameralik’s actions were unreasonable in the circumstances.</p>
</blockquote>

<p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></p>
<p>The scenario you describe <strong>would</strong> be considered violence by the assailant. And also rape. There is <a href="https://www.gesetze-im-internet.de/stgb/__32.html" rel="nofollow noreferrer">§32(2) StgGB</a>:</p>
<blockquote>
<p>Notwehr ist die Verteidigung, die erforderlich ist, um einen gegenwärtigen rechtswidrigen Angriff von sich oder einem anderen abzuwenden.<br />
Self-defense is the defense which is necessary to stop a present, unlawful attack on oneself or others. (My translation.)</p>
</blockquote>
<ul>
<li>Your fictional case describes a <em>present</em> attack.</li>
<li>It also describes an <em>unlawful</em> attack (see above).</li>
<li>Stabbing the assailant is <em>suitable</em> to stop the rape.</li>
<li>Which leaves, as a last point, the question if lethal force is <em>necessary</em> to stop the attack.</li>
</ul>
<p>The last bullet point does not require the victim to make a strict test of proportionality, only to test if lesser means are readily at hand. Lethal force is allowed to stop a rape if the victim sees no non-lethal way.</p>
<p>Precedent rules out self-defense if there is a <em>gross</em> disproportionality between the unlawful attack and the defense. A common example would be shooting somebody as the only feasible way to prevent the theft of an apple from an orchard. But that is not the case here.</p>
<p>Of course things depend on the details. Say the first stab cripples the leg of the assailant, and the defender is in a position to realize this. Then the defender could simply back off and walk away. Likewise, if the assailant sees the knife and starts to run away, the <em>present</em> attack stops.</p>
<p>It would also get complicated if the victim knew that the assailant was unable to take criminal responsibility for his acts. For instance, the permission of disproportionate defense from §32 does not apply if the assailant is a small child.</p>

murder self-defense sexual-assault manslaughter