THE HIGHLY TRAINED CRIMINAL
Are You Mastering Self-Defense or Assault and Battery?
by Scot Conway, Ph.D., J.D.

“It’s better to be judged by twelve than carried by six.”

Anthony had no idea how many times he heard his instructor say that over the years. The concept always seemed sensible when he heard it in class. It really was better to be put on trial for doing too much than it would be killed by a criminal. What he had never really considered was that he might not have to do as much as he did. True, the other guy started it. True, the other man threw the first punch. Now, though, listening to the testimony, his actions seemed very unreasonable.

The other man was about the same size as Anthony. He was a little drunk, and more than a little obnoxious. His punch was intended to hurt, but having heard the witnesses talk about it, even Anthony had to admit his actions sounded like overkill. He blocked the punch easily, then he exploded with a rapid series of techniques. It was just as he had practiced countless times in class. The ribs cracked, the jaw popped, the head snapped back, the body crumpled, and the final move, the spinning back kick, sent the other guy flying half way across the room into the bookcase.

The party suddenly stopped. Anthony expected to be congratulated for his expert skill at stopping this aggressive, violent party goer. Instead he was faced with shocked, horrified expressions. He tried to explain himself, but everyone seemed to agree that it was Anthony, not the other guy, who had gone too far.

As the jury returned to give their verdict, Anthony already knew what to expect. The other man was in the hospital. Anthony was fine. Admittedly, the other man was not much of a threat to him. For all his years training to defend himself against criminals, he had to face the hard reality that he was about to be found guilty. The only question was whether he would go to prison for assault and battery, or attempted murder.

Trained to defeat criminals, Anthony realized too late that he was trained to be the criminal.

SELF DEFENSE

The American Council on Martial Arts (ACMA) Instructor Certification Manual explains the legal concept of self defense:

A) The defense must be necessary.
B) The force used must be reasonable under the circumstances.

For the defense to be necessary, someone must be trying to harm you now. A threat of future harm, belligerent posturing, or “getting in your face” does not constitute sufficient legal grounds to injure the aggressor. Using devastating martial arts techniques under these circumstances is almost certainly a criminal act.

The reasonable force issue is more difficult to judge. The level of force may be enough to ensure your safety, but no so much that your safety would have been assured with a lower level of force. These are obviously fuzzy lines allowing for a large gray area in between. What seems reasonable to one person might seem too much or too little to another. However, beyond the fuzzy lines, there are more certain absolutes.

You are not expected to let someone beat you without stopping them. You are not permitted to critically injure or kill someone unless you were in immediate danger of being critically harmed or killed.

That was the mistake Anthony made in the opening story. The drunk party goer punched at him. Anthony blocked. He was now safe. A shove or single counter would almost certainly have been enough to preserve his ongoing safety. Other people could have easily helped hold the other man back without further injury. If the man kept coming, or if he escalated the assault by grabbing a bottle, then Anthony might have been justified to do more.

Exploding on the man with a devastating series of techniques that put the man in the hospital was overkill. The man simply was not that much of a threat. With Anthony’s skill, a single drunk brawler would not pose a threat substantial enough to justify that level of violence.

PROBLEMS

Many martial arts schools teach illegal techniques. This is not a problem limited to a single style or type of martial arts training, but a more generic problem that seems to infiltrate many arts. It is especially common in arts taught to or by military personnel. Military applications for wartime are very, very different from street application in the civilian world. While a devastating SEAL Team instant annihilation technique might be well suited for killing enemy soldiers, it has extremely limited application to ordinary criminal assaults. The vast majority of criminal assaults use far too low a level of violence to justify lethal techniques.

This is part of why Krav Maga, the self defense system originated with the Israeli military has three versions: military, civilian and law enforcement. Military is life and death wartime application of martial arts skills. Civilians face completely different situations in day to day life and are not likely to need the harsh techniques of a wartime soldier. Law Enforcement has to fight by rule governed by department policy. Thus each needs different skills.

There are many examples of techniques almost certain to break the law.

In one school there was a defense against a wrist grab that broke the knee, the elbow, and smashed the groin. As if that was not enough, there was a takedown followed up with a stomp to the face. The attacker just grabbed the wrist!

Another school had a technique against a rear shoulder grab that broke the arm and devastated the offender with a series of additional moves. The “attack” was similar to the sort of move anyone trying to get your attention might use.

Worst of all, there was an instructor that talked about “controlling your personal space” and actually advocated using violence if someone aggressively invaded your “self defense zone.” He explained that in a potential fight, you don’t want someone to make the first move from within their comfortable range of attack. If someone was being aggressive and came that close, you were supposed to kick him, punch him, or hit him with an elbow or knee. You were not supposed to wait until he attacked.

If someone grabs your wrist, crippling him is almost never justified. If he has a knife or gun in the other hand, or if you are surrounded by more criminals also intent on harming you, or if he is trying to drag you into a room or car for a probably more serious assault, then you might be justified. If a man on the street just grabs you, though, you can do a release, perhaps a palm strike, an arm bar, or some other mildly damaging or non-damaging technique.

If someone grabs your shoulder to turn you around, it is better to see who it is and what they plan to do next before you attack. If someone invades your personal space, you can’t kill him for it. You can’t attack him until he attacks you. If you are the first to use violence, then you are the criminal. If the violence you use is excessive, then, again, you are the criminal.

THE BASIC QUESTIONS

The first question to ask yourself at any moment of any engagement is this:

“Do I HAVE to do anything, yet?”

If the answer is no, then do nothing. You might want to do something. You might think that doing something will make sure you are safe, but if you are not in immediate danger, you are seldom justified.

If the answer to the first is yes, the second question is this:

“What’s the least I can do to stay safe?”

If you can step away, then step away. If you need to push him away, then push him. If you don’t need to hit him to stay safe, then don’t hit him. If you do need to hit him, hit him no harder than necessary to be reasonably free from danger.

IMPORTANT VARIABLES

Size - Size does matter. If you are bigger than your attacker, then you will probably be limited to a lower of level of force. If you are smaller, then you can probably act sooner and hit harder because the potential danger to you is higher if you wait.

Sex - Women are almost always permitted to use a higher level of force against a man than might be acceptable for male on male crime. If a man is being assaulted by a woman, the level of force he can use without probably legal repercussions is minimal. Any strike might be enough to result in a criminal conviction.

Numbers - When the attackers outnumber the defenders, the defenders are allowed a higher level of force. When the defenders outnumber the attackers, a much lower level of force is permitted, such as tackling someone and holding them rather than beating them up.

Weapons - Weapons allow for a leap in the force permitted. If an individual man of equal size is armed with a baseball bat, lethal force might be justified because a good swing with a bat can kill you. However, beware of disarm and follow up techniques. Once you’ve disarmed the attacker, he is no longer armed. If you disarm him and use the weapon against him, then you are the armed attacker!

History - If you know something of someone’s background, then it affects the level of force you might be permitted. If you know someone is a brawler who never actually hurts anyone, then you can’t hospitalize him. If you know someone has served time for manslaughter, then you can probably use a much higher level of force. If you know someone was military special forces, you can probably act sooner and do more damage.

Location - If you are defending yourself in your own home or your business, you are not normally expected to withdraw. However, if you are defending yourself in the attacker’s home, you are almost certainly going to be expected to withdraw. Standing your ground and fighting without some safety issue at stake is likely to get you in trouble if you had a reasonable and safe opportunity to leave. “Defending your honor” is rarely considered a valid legal defense.

A FIST FULL OF MAYBES

If it seems that everything is full of “maybe” and “probably,” that’s because it is. No one variable controls the level of force permitted. It’s “the totality of the circumstances” that are judged, not any one or two factors. The concept of “reasonable force” is fuzzy at best, unknowable at worst.

What might be considered a perfectly common and acceptable violent reaction in rural Louisiana might be completely unacceptable in upscale Beverly Hills. What might be reasonable force on the beach might be too much in an office. What seems perfectly acceptable force among men might be considered grossly excessive between women.

To make things even more difficult, in the huge gray area of reasonableness, one jury might find something acceptable while the next jury might find the exact same situation unreasonable. What one group of twelve citizens considers assault, another might consider attempted manslaughter. When you go to court in the gray areas, the outcome is a crap shoot. You roll the dice and see what happens.

CONCLUSION

There are no hard and fast rules in the law. It ebbs and flows as society changes, from region to region and circumstance to circumstance. In 1950 is was acceptable for a man to punch another for nothing more than insulting a woman. Today that would be a criminal assault.

What might have been a perfectly good traditional technique in 1850 is excessive today. The culture may go back, or it may continue on a path toward enforced pacifism among citizens. The martial artist can expect to be judged far harsher than an untrained civilian, and if you ever face prosecution or litigation from self-defense or defense of others, it is best to have a qualified attorney and an independent expert witness at your disposal.

While it may be better to be judged by twelve than carried by six, you want to do your best for the judgment to be “not guilty.”

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