QUESTION: SUPPOSE THE ACCUSED IS SIX INCHES SHORTER AND 50 POUNDS LIGHTER
THAN THE ALLEGED VICTIM IS THIS RELEVANT?
ANSWER: YES. THESE FACTS AFFECT THE REASONABLENESS OF THE ACCUSED'S
APPREHENSION THAT DEATH OR GRIEVOUS BODILY HARM WAS WRONGFULLY GOING
TO BE INFLICTED ON HIM, RCM 916(e). ANOTHER FACTOR IS THE VICTIM'S REPUTATION
FOR BEING "AGGRESSIVE, ANGRY, AND QUICK-TEMPERED." U.S. V. SHUFFORD, 7 MJ
716 (ACMR 1979).
ALL OF THESE FACTORS "COULD SUPPORT A REASONABLE
CONCLUSION ON THE PART OF THE APPELLANT THAT GRIEVOUS BODILY HARM MIGHT
RESULT FROM A FIGHT WITH (THE VICTIM)." U.S. V. MARTINEZ, 12 MJ 601 (NMCMR
1981).
QUESTION: THE ACCUSED IS ATTACKED BY A MUCH LARGER SOLDIER AND
REASONABLY APPREHENDS THAT HE IS GOING TO SUFFER GRIEVOUS BODILY HARM.
TO DEFEND HIMSELF, THE ACCUSED GRABS A PIPE AND THROWS IT AT THE
ASSAILANT. HE MISSES AND STRIKES AN INNOCENT THIRD PARTY. IS HE GUILTY OF
ASSAULTING THE THIRD PARTY?
ANSWER: NO. HE ACTED REASONABLY IN SELF-DEFENSE. THE UNINTENDED INJURY
TO THE THIRD PARTY IS, THEREFORE, AN ACCIDENT. U.S. V. TALLIAU, 7 MJ 845 (ACMR
1979).
QUESTION: CAN A PERSON DEFEND A THIRD PARTY?
ANSWER: YES. A PERSON MAY ACT IN DEFENSE OF ANOTHER, BUT MAY NOT USE
MORE FORCE THAN THE PERSON DEFENDED WAS LAWFULLY ENTITLED TO USE IN HIS
OWN DEFENSE RCM 916 (e) 5.
2. Use of nondeadly force. The elements here are: (1) that the accused apprehended, upon
reasonable grounds, that bodily harm was about to be inflicted wrongfully on him; and (2) that the
accused believed that the force used "was necessary for protection against bodily harm, provided that the
force used by the accused was less than force reasonably likely to produce death or grievous bodily
harm." RCM 916(e) (3) Self-defense, then, may be used against the lesser forms of assault. U.S. v.
Sawyer, 4 MJ 64 (CMA 1977).
A good example is U.S. v. Jones, 3 MJ 279 (CMA 1977). The assailant hit the accused in the face.
The accused responded by hitting the assailant...who died. Although the accused didn't fear death or
grievous bodily harm, he was still acting in self-defense. Since the accused acted lawfully, by using
nondeadly force to repel an assault consummated by a battery, he could not be convicted of any offense
causing the victim's death.
3. Loss of right to self-defense. "The right to self-defense is lost" and these defenses do not
apply "if the accused was an aggressor, engaged in mutual combat, or provoked the attack which gave
rise to the apprehension." Self-defense is available to the accused in these situations, if he "had
withdrawn in good faith after the aggression, combat, or provocation and before the offense alleged
occurred." RCM 916(e) (4).
4. Parental Discipline Defense.
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MP1019
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