By DFW Criminal Defense Lawyer Jeremy Rosenthal
Self-defense is the lynchpin of many, many domestic violence cases.
You have the right to defense yourself from an assault in Texas. The law makes no distinction about gender, age or mental disability in the area of self defense.
Read here for an index of defending domestic violence cases topics.
Texas Law on Self-Defense
Here is Texas Penal Code 9.31(a) which I’ll dissect after you give it a read:
…a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
The law requires when someone defends themselves the impending attack on them must be imminent – not some time in the near or distant future.
“Use or Attempted Use of Unlawful Force”
The term unlawful force here is crucial. Unlawful force can be defined as any unwanted, offensive or provocative contact.
Police, prosecutors and even defense lawyers make the common mistake in assault cases of assuming merely because someone inflicted more damage in an altercation – that person must not have been exercising self defense.
Also, this statute is mainly in the mind of the defendant. Did the defendant “believe force” was “immediately necessary”? Even if defendant misread the situation, they could still argue self-defense if in their mind they believed they were defending themselves.
Some common/ potential examples of self defense in domestic abuse cases:
- Accuser shoves defendant and scratches defendant’s face – defendant pushes back knocking accuser onto the floor;
- Accuser screaming and poking defendant in the chest (unwanted or provocative contact) – defendant grabs accusers arm causing pain;
- Accuser is intoxicated and throws a weak punch at defendant – defendant braces the accuser from throwing any more punches and in doing so causes pain in forcing them to the ground;
Reciprocal Intimate Partner Violence
No discussion of self-defense is complete without the mention of a concept known as “reciprocal intimate partner violence” or “RIPV.” It is a term used by Ph.D’s who have studied domestic violence and believe much of the dysfunction is reciprocal – meaning both partners have been the aggressors at times and the victims at times. It’s a concept I’ll discuss at length more during later blogs in this continuing series on domestic violence cases – but it is important to understand mutual combat situations are very common in domestic assault cases.
What Degree of Force is Appropriate?
Self-Defense allows defense within reason and the defense must be proportional. Someone cannot kill another person for spitting on their face.
When someone is defending themselves from unlawful contact, they can cause bodily injury in response (infliction of pain or discomfort).
When someone is defending themselves from serious bodily injury or death (impairment of a life function or major organ), they can in turn use deadly force. Tex.Pen.C. 9.32.
When Self-Defense Isn’t Allowed
The law does not allow someone to provoke the accuser into committing an assault only to attack them in return. The law also doesn’t allow someone to defend themselves because of words alone. A person can also not lawfully make a self defense claim if they are in the commission of a crime greater than a traffic-level offense.
*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.