2008 edition - Fort Sam Houston - U.S. Army

R.C.M. 916(e)(1)(B)
accused is not objectively limited to the use of reasonable force.
Accordingly, such matters as the accused’s emotional control,
education, and intelligence are relevant in determining the accused’s
actual belief as to the force necessary to repel the attack.
See also Mil. R. Evid. 404(a)(2) as to evidence concerning
the character of the victim.
(2) Certain aggravated assault cases. It is a defense
to assault with a dangerous weapon or means
likely to produce death or grievous bodily harm that
the accused:
(A) Apprehended, on reasonable grounds, that
bodily harm was about to be inflicted wrongfully on
the accused; and
(B) In order to deter the assailant, offered but
d i d n o t a c t u a l l y a p p l y o r a t t e m p t t o a p p l y s u c h
means or force as would be likely to cause death or
grievous bodily harm.
Discussion
The principles in the discussion of subsection (e)(1) of this rule
concerning reasonableness of the apprehension of bodily harm
apply here.
If, as a result of the accused’s offer of a means or force
likely to produce grievous bodily harm, the victim was killed or
injured unintentionally by the accused, this aspect of self-defense
may operate in conjunction with the defense of accident (see
subsection (f) of this rule) to excuse the accused’s acts. The death
or injury must have been an unintended and unexpected result of
the accused’s exercise of the right of self-defense.
(3) Other assaults. It is a defense to any assault
punishable under Article 90, 91, or 128 and not
listed in subsections (e)(1) or (2) of this rule that the
accused:
( A ) A p p r e h e n d e d , u p o n r e a s o n a b l e g r o u n d s ,
that bodily harm was about to be inflicted wrongfully
on the accused; and
(B) Believed that the force that accused 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.
Discussion
The principles in the discussion under subsection (e)(1) apply
here.
If, in using only such force as the accused was entitled to
use under this aspect of self-defense, death or serious injury to the
victim results, this aspect of self-defense may operate in conjunction
with the defense of accident (see subsection (f) of this rule)
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to excuse the accused’s acts. The death or serious injury must
have been an unintended and unexpected result of the accused’s
proper exercise of the right of self-defense.
(4) Loss of right to self-defense. The right to selfdefense
is lost and the defenses described in subsections
(e)(1), (2), and (3) of this rule shall not apply
if the accused was an aggressor, engaged in mutual
combat, or provoked the attack which gave rise to
the apprehension, unless the accused had withdrawn
in good faith after the aggression, combat, or provocation
and before the offense alleged occurred.
Discussion
A person does not become an aggressor or provocateur merely
because that person approaches another to seek an interview, even
if the approach is not made in a friendly manner. For example,
one may approach another and demand an explanation of offensive
words or redress of a complaint. If the approach is made in a
nonviolent manner, the right to self-defense is not lost.
Failure to retreat, when retreat is possible, does not deprive
the accused of the right to self-defense if the accused was lawfully
present. The availability of avenues of retreat is one factor
which may be considered in addressing the reasonableness of the
accused’s apprehension of bodily harm and the sincerity of the
accused’s belief that the force used was necessary for self-protection.
(5) Defense of another. The principles of self-defense
under subsection (e)(1) through (4) of this rule
apply to defense of another. It is a defense to homicide,
attempted homicide, assault with intent to kill,
or any assault under Article 90, 91, or 128 that the
accused acted in defense of another, provided that
the accused may not use more force than the person
d e f e n d e d w a s l a w f u l l y e n t i t l e d t o u s e u n d e r t h e
circumstances.
Discussion
The accused acts at the accused’s peril when defending another.
Thus, if the accused goes to the aid of an apparent assault victim,
the accused is guilty of any assault the accused commits on the
apparent assailant if, unbeknownst to the accused, the apparent
victim was in fact the aggressor and not entitled to use selfdefense.
(f) Accident. A death, injury, or other event which
occurs as the unintentional and unexpected result of
doing a lawful act in a lawful manner is an accident
and excusable.