The warped history of self-defense law reveals a legacy of privilege

The warped history of self-defense law reveals a legacy of privilege
man in grey long sleeve shirt holding black rifle

Kyle Rittenhouse was acquitted last week of shooting three people, killing two of them, because, he said, he feared for his life.

Some are claiming this verdict suggests that the legal system will be more supportive of those claiming self-defense at criminal trials. The United States Supreme Court has signaled its interest in striking down a New York gun regulation, because of its concern for poor commuters in New York City who need to defend themselves.

So once the Supreme Court allows me to carry a concealed weapon while walking around New York City, it sounds like I would be justified in shooting someone anytime my life is threatened. Perhaps the next time a strange man follows me home, I should shoot him. Or if a catcaller says something about raping me or if I'm alone in a subway car and a man sits down next to me -- perhaps I should shoot them all.

All of these situations pose a grave risk and all of them have happened to me many times over. It also seems that the "reasonable (wo)man" standard would justify the use of deadly force in the name of self-defense, as I'm sure most women in those situations also fear for their lives. But I'm guessing a jury wouldn't be so quick to let me off and society would probably enjoy classifying me as a "crazy" woman with a man-killing agenda. After all, Aileen Wuornos was executed.

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Historically, there have been groups explicitly excluded from claiming self-defense if they killed the person harming them. Common law drew a distinction between "justifiable homicides" that served the public good and personal killings in self-defense, which were "excusable homicides." In excusable homicides, people had a duty to retreat before using deadly force. In justifiable homicides, the killer could pursue the person, like if they committed a crime. There was no duty to retreat if one was at home, but this really was about protecting the property rights of land-owning white men. The duty to retreat even outside the home eroded in the 19th century with westward expansion and with contemporary "stand your ground" laws.

Self-defense was conceived as a right to protect one's person but also as a clear protection of property. It created a problem for people who were also legally included in property. Enslaved people obviously had no right to self-defense. Women were often legally included in the property of fathers and husbands. Enslaved people and (married) women had limited rights over their person historically.

Theoretically, intentionally killing a slave was illegal in most jurisdictions, but in practice it was rarely prosecuted. Since slave owners had broad power to enact physical punishment, there was no right to self-defense. Similarly, while interracial sex was illegal in many jurisdictions, and certainly publicly distasteful, that offered no protection for enslaved women raped by their masters. In 1855, an enslaved woman named Celia killed her owner after he had spent five years raping and producing at least one child. While the sexual abuse was well known and began when she was bought at 14, 12 jurors had no problem sentencing Celia to death for defending herself.

For (white) women, coverture was the legal theory that married women were legally covered within the protection of their husbands. This meant they did not have separate property and didn't need to vote, but also that they did not have the same physical rights.

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Dating back to common law, there was no legal cause of action for men raping their wives. It wasn't until 1993 that marital rape was illegal in all 50 states. While theoretically women still had the right to defend themselves against their husbands killing them, this legal understanding made that defense much harder to use. Rape was a legal cause of action for women if their rapist was not their husband, but it was rarely prosecuted in the 19th century. The more common charge was "seduction" in which a woman claimed a man convinced her to have sex with him under the false pretense that he would marry her. It was much harder to claim self-defense if courts didn't recognize your rights to bodily autonomy in the face of male violence.

Obviously today, self-defense is theoretically available to everyone in this country, and rape is a recognized cause of action for married and unmarried women. Unfortunately, the history of self-defense being the purview of white men still influences the legal culture in this country.

It's much harder to successfully claim self-defense for Black people when just owning a gun makes them seem guilty of something to many white people. Courts are also less likely to apply stand your ground laws to Black defendants, but there is an assumption that it is understandable for white defendants to be scared of Black men.

Self-defense laws are less likely to protect women defending themselves against abusers. Most require using deadly force only if she's in "imminent" danger. That means if women take an opportunity to kill their abusers when she's calm, she can't claim self-defense.

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Courts often don't let women use stand your ground laws to support self-defense claims because they kill men they have an ongoing relationship with or even with whom they share a legal residence.

Marissa Alexander was sentenced to 20 years after firing a warning shot in the vicinity of her abuser. It's possible that up to 90 percent of women in prison for killing a man had previously been abused by him. Women serve significantly longer sentences for killing intimate partners than men do despite the likelihood of killing the abuser.

Whatever people say about Kyle Rittenhouse, it's clear most of us can't shoot people anytime we feel threatened and get acquitted based on self-defense. Maddesyn George, a native woman who killed a white man who'd raped her, wasn't allowed to use a self-defense claim in federal court because prosecutors said she was the "initial aggressor."

Chrystul Kizer is fighting for her life in the same jurisdiction as Rittenhouse. In 2018, Kizer, then 17, killed a known sexual abuser after she had been trafficked. At first, a judge ruled she couldn't claim self-defense but his decision was overruled on appeal. The prosecution is still fighting that decision, claiming the killing was premeditated and the Wisconsin Supreme Court will decide if Kizer can claim self-defense as a trafficking victim.

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There are countless cases of women who survived and were punished by the criminal justice system for defending themselves.

The Rittenhouse verdict isn't a victory for self-defense. It's just another example of white men having different rights from the rest of us.

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