Preventative self-defense occurs when the defendant reasonably believes that the victim is about to commit a battery on him or her. R.C.M. 916(e)(2). Thus, an accused may offer an aggravated assault to deter a simple battery.
In United States Acosta-Vargas, 32 C.M.R. 388 (C.M.A. 1962), the Court held that the defendant was entitled to defend himself in a manner proportionate to the threat faced, even if he was the original aggressor or was engaged in mutual combat.
In United States v. Johnson, 25 C.M.R. 554 (A.C.M.R. 1958), the Court found that the defense of preventative self-defense was available where the defendant fired a gun to deter a simple assault.
In United States v. Lett, 9 M.J. 602 (A.F.C.M.R. 1980), the Court found that the defense of preventative self-defense was available where the defendant pulled a knife out to deter a battery.
Charge of homicide or aggravated assault
A person may justifiably inflict death or grievous bodily harm upon another if the person reasonably believes that death or grievous bodily harm was about to be inflicted on him or her and believes that the force used was necessary to prevent death or grievous bodily harm. In United States v. Clayborne, 7 M.J. 528 (A.C.M.R. 1979), the Court held that use of a knife by the defendant constituted self-defense because the defendant knew that the victim was an experienced boxer, had a reputation for fighting anyone, and may have once thrown a person out of a window. However, in United States v.Ratliff, 49 C.M.R. 775 (A.C.M.R. 1975), the Court reached a conclusion opposite to Clayborne.
Charge of simple assault or battery
A person may justifiably inflict injury short of death or grievous bodily harm if he or she apprehended, upon reasonable grounds, that bodily harm was about to be inflicted on him or her, and he or she believed that the force used was necessary to avoid that harm, but that the force actually used was not reasonably likely to result in death or grievous bodily harm. In United States v. Jones, 3 M.J. 279 (C.M.A. 1977) the Court held that the defendant could respond to a simple fistic assault with similar force. See also United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966).
No Self-Defense for Aggressor or Mutual Combatant
A provoker, aggressor, or one who voluntarily engages in a mutual affray is not entitled to act in self-defense unless he first withdraws in good faith and indicates his desire for peace. R.C.M. 916(e)(4). In United States v. Marbury, 50 M.J. 526 (Army Ct. Crim. App. 1999) aff’d 56 M.J. 12 (C.A.A.F. 2001), the defendant could not raise the defense of self-defense, when after she was hit, she retreated from her room, unsuccessfully sought assistance from fellow NCOs, grabbed a knife, and then reentered her room, and started a confrontation by threatening the victim with the knife. See also United States v. Brown, 33 C.M.R. 17 (C.M.A. 1963), United States v. O’Neal, 36 C.M.R. 189 (C.M.A. 1966) and United States v. Green, 33 C.M.R. 77 (C.M.A. 1963).
Retreat or Withdrawal
The person is not required to retreat when he or she is at a place where he or she has a right to be. However, the ability to withdraw safely may be a factor in deciding whether the defendant had a reasonable belief that bodily harm was imminent. R.C.M. 916(e)(4). In United States v. Adams, 18 C.M.R. 187 (C.M.A. 1955) the Court considered whether a soldier has an obligation to retreat from his tent when that is the place in which he or she was attacked. The Court held that when a soldier is in his home, the soldier has retreated as far as the law requires. In United States v. Jenkins, 59 M.J. 893 (Army Ct. Crim. App. 2004), the Court found that when the defendant’s friend because unconscious and ceased to resist, he effectively withdrew, giving the defendant the right to exercise self-defense on his behalf. See also United States v. Lincoln, 38 C.M.R. 128 (C.M.A. 1967) and United States v. Smith, 33 C.M.R. 3 (C.M.A. 1963).
If a victim responds to a threat or assault in a manner that escalates the affray, then the defendant may have a defense of self-defense for his or her response to the victim’s actions. In United States v. Cardwell, 15 M.J. 124 (C.M.A. 1983), the Court held that even a person who is the initial aggressor has the right to self-defense if the victim escalates the level of combat. Likewise, in United States v. Dearing, 63 M.J. 478 (2006) (citing Cardwell, the Court noted that “initial aggressor is still entitled to use deadly force in his own defense just as he would he withdrew completely from combat and was then attacked by his opponent, in instances where the adversary escalates the level of conflict.” In United States v. Lewis, 65 M.J. 85 (2007), the Court stated that in a case where the opposing party escalates the conflict, the initial aggressor is entitled to use “that force reasonably necessary to deter or defend against the opposing party’s use of escalated force.” Conversely, self-defense is not raised where the defendant/initial aggressor participated in escalating the affray. United States v. Winston, 27 M.J. 618 (A.C.M.R. 1988).
Termination of Threat
The right to self-defense goes away when the threat no longer exists. See United States v. Richey, 20 M.J. 251 (C.M.A. 1985)
In determining whether a defendant’s acting reasonably in responding to a perceived threat, the fact that the defendant was voluntarily intoxicated cannot be taken into consideration. See United States v. Judkins, 34 C.M.R. 232 (C.M.A. 1964).
C.M. 916(e)(3). If the defendant acts in self-defense under lawful circumstances and uses less force than would likely cause death or grievous bodily harm, the defendant may still use the defense of self-defense, even if the victim dies, if the defendant’s use of force was not disproportionate, the victim’s death was unintended and the victim’s death was not reasonably foreseeable. In United States v. Jones, 3 M.J. 279 (C.M.A. 1977), the victim hit the defendant in the face and the defendant responded by hitting the victim in the face, causing the victim’s death. The Court found that the defendant was lawfully acting in self-defense by using nondeadly force to repel a battery by the victim. See also United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966).