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Against a rapist

By Massad Ayoob

Massad Ayoob

Issue #65 • September/October, 2000

Can you use lethal force in self-defense against a rapist? The answer, of course, is yes. Deadly force is permissible only in a situation of "immediate, otherwise unavoidable danger of death or great bodily harm." No victim of rape has ever submitted unless the attacker clearly or implicitly gave her (or, sometimes, him) the choice of compliance or "immediate, otherwise unavoidable danger of death or great bodily harm." These concepts mesh rather clearly.

Where people get in trouble is employing the force too early or too late. The misogynist police officials who don't like to issue concealed handgun permits to women fear that they'll "get hysterical" and "shoot some guy for patting them on the butt." Obviously, such an action would not justify responding with a firearm. At the same time, once the attack is over and the suspect is making his escape, the law frowns on killing the offender after the danger has ended. While there is a limited window for use of deadly force against a fleeing felon per the Supreme Court's decision in Garner v. Tennessee, there are certain specific, situational factors that have to be in place. That's a "fine-point" topic we don't have room to address here at the moment.

Consider the case of People of California v. Inez Garcia. Some years ago, Ms. Garcia was raped in an apartment by multiple attackers. After they had left, the hysterical victim armed herself with a .22 rifle and staggered into the street. She soon encountered a couple of the perpetrators. When one of them reached for his knife, she shot him dead. She was criminally charged.

Her first defense lawyer used an impaired capability defense: she was temporarily out of her mind, she was hysterical, yada yada. She was convicted. Juries don't like the idea of people getting hysterical and killing people they aren't supposed to kill, and the jurors don't like to leave such defendants walking around loose.

She won her appeal, though, and won her freedom in her next trial. This time, her new lawyer pleaded straight-up self-defense. She didn't hunt down the rapist and kill him for revenge, it was explained, which is why she didn't shoot the other rapist with him; rather, she defended herself when he went for his knife. The jury agreed, acquitting her.

It's most clear-cut when the attacker is shot during the actual assault. In a Los Angeles case, the rapist grabbed a woman on the street and was forcing her to the ground and attempting the rape when she drew her miniature Freedom Arms .22 Magnum, shoved the muzzle into his chest, and inflicted a swiftly-fatal contact wound. The sympathetic District Attorney's office ruled the shooting itself a justifiable homicide, and allowed her to plead guilty to a misdemeanor with no time served for illegally carrying a concealed and loaded handgun.

Of course, the victim doesn't need to wait for the rape to begin, either. One of my graduates faced a rapist who had broken into her home while she was at work. She drew her licensed SIG .380 and ordered him to halt. He came toward her. She shot him in the wrist. He disobeyed her command again, and this time she shot him in the center of the chest, ending the matter decisively. He died from the wound. The grand jury refused to indict her, effectively ruling the death a justifiable homicide.

Another of my female graduates wasn't able to get to her gun when an evening of drinking with a man she liked enough to bring home turned into date rape. She managed to get out of his arms on a pretext, and grabbed her Smith & Wesson .22 revolver. She ordered him to leave. He lunged at her in a rage, obviously about to take the gun and turn it against her, and she emptied it into him. He staggered into an outside hall and died. This, too, was ruled a justifiable homicide. Neither of these killings resulted in a lawsuit.

A couple of one-armed sexual predators who didn't understand reality are still alive. One attempted to rape at gunpoint an electrologist who had her father's S&W .44 Magnum in her purse. She shot it out with him. His one shot with his .25 auto missed. She got him two for two in the gun arm with her Dirty Harry commemorative model, leaving him with only one functional upper limb. The shooting, of course, was ruled justifiable. A female paramedic in the Great Lakes area told me how she grabbed her S&W .38 Special when she heard a noise in the hall, and emerged from her bedroom to confront a man climbing through the hall window. She said, "Stop or I'll shoot!" His reply was a classic example of famous last words: "You ain't got the balls to shoot me, bitch!" BLAM! The .38 hollowpoint dropped him with a shoulder so badly shattered his arm had to be amputated. One wonders what stories he told his cellmates about how his condition came to be; she was ruled justifiable, and he was sent to prison, she reports.

There is a twofold argument—some lawyers would say threefold—why rape is an act of deadly force that warrants a deadly force response. First, there is the stated or implicit threat of death or serious injury if the victim does not comply. Second, the act of rape is an "invasion of the body proper." Third, in the time of blood-borne pathogens, some attorneys argue that there is a reasonable fear of death by AIDS, Hepatitis-B, etc., if the rapist is allowed to complete his act.

Review the above. Six women. Four rapes prevented. Six very possible murders prevented. Four dead attackers, and two crippled for life as a result of their own vicious misadventure. Only one of these six women criminally charged, and she, finally acquitted. There are lessons here.

Note, for example, that four of these six women were ruled justifiable in shooting their attackers even though the men they shot turned out to be unarmed. The principle is called "disparity of force." The law understands that when a male violently attacks a female, even with just his bare hands, the likelihood of him inflicting death or crippling injury is so great that she is justified in using a lethal weapon against him in self-defense.

Publisher Dave Duffy feels the pain when terrified citizens over-react and use deadly force improperly. He told me about a homeowner recently convicted for a wrongful shooting when he chased an intruder from his home and shot him down some 500 yards from the crime scene. Dave muttered to me sadly, "If he had just read your book..."

The book in question is titled In the Gravest Extreme: the Role of the Firearm in Personal Protection. You can buy it through Backwoods Home, with an ad and an order form found in this issue. I wrote it 20 years ago, and it has stood the test of both time and the courts, because deadly force is covered by a very mature and well-established body of law that the book clearly describes. I was told recently that the U.S. Attorney's Office issues it to their armed personnel. Immodest as it sounds, I would suggest it as a starting point for anyone who keeps or carries a gun for protection.




Read More by Massad Ayoob

Read More Firearms / Hunting / Self-Defense Articles

 
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