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New_comer
06-28-2006, 08:23
Hello,

Somebody may have already beaten me in posting this, but hey, it's free just the same, and I'm too lazy to search for it:

http://www.kda.ph/philstar/kda_philstar.html


The LAW and SELF-DEFENSE: The Legal Aspect of KARATE


(Conclusion)

14 March 2006
by Atty. Eric G. Espiritu1


While a person may be excused for being unable to control the force or number of his blows when defending himself, there however must still be a rational necessity to employ the means used in his defense.

Factors that determine reasonableness of the means of defense .

The reasonableness of the means employed in the defense depends on various circumstances, such as the gender, size, character, and physical condition of both the attacker and the person defending himself; the absence or presence of a weapon or weapons, and if there are, the type(s) of weapon(s) used by the attacker or defender, or both; and the location and time of the attack.

As stated earlier, the means of the defense employed should be proportionate to the attack. Hence, if a man is being attacked with mere punches by another who is of the same size and strength, then the former may have to limit his defense to just punching back as well, in which case an exhibition of honest-to-goodness fisticuffs shall ensue to the possible amusement of on-lookers. In contrast, the Supreme Court determined in another case that there was no reasonable necessity for a person to use and kill his attacker with a knife when he was being attacked with fist blows only.

Circumstances change though when there is a difference in the genders of the attacker and victim. Women are straightaway perceived, rightly or wrongly, to be the so-called “weaker sex” (a misconception that is convincingly quashed however by the female Black Belts of KDA) and this misguided labeling prompts men to attack or commit acts of aggression against females who tend to be smaller and/or not as strong as their attackers. Thus, more leeway is usually given to women in the appreciation of the circumstances of attacks against them, and it would be more acceptable, for instance, for a woman to use any sort of reasonable weapon to ward off her aggressor, even if the latter were unarmed.

On the subject of weapons, what would constitute a “reasonable” one for self-defense? It varies once again according to the situation. In line with various cases, a knife is a reasonable weapon of defense against an attack with a club or stick if the person had no other available means for defense, or even if there were other means, he could not rationally choose a possibly less deadly weapon to repel the attack. It was also decided that it is reasonable to use a gun—in one case, even a shotgun—against an attacker with a bolo.

We have finished discussing the first two requisites of the Justifying Circumstance of Self-Defense, and proceed to its third and final requisite.

Third requisite: LACK of SUFFICIENT PROVOCATION on the PART of the PERSON DEFENDING HIMSELF .

Given that there was unlawful aggression against the person defending himself, such aggression however should not have been the result of the latter’s own actions, for if it were, then he would be just as responsible for inciting or provoking the aggression in the first place.

There is a legal maxim that goes Nullis commodum protest de injura propria, which means, “No man should be allowed to take advantage of his own wrong.” It is easy enough to understand that if one provokes, through words or acts, another sufficiently enough to cause the latter to attack him, then the person who provoked cannot benefit from his own initial wrongdoing and evade criminal and civil liability for any injury he may cause the one he provoked by hiding behind the mantle of self-defense.

What constitutes “sufficient” provocation .

Note that the provocation should be “sufficient”, or enough to cause the unlawful aggressor to attack the person defending himself. In other words, even if there was some provocation on the part of the person making the defense, but the provocation was not sufficient, there may still be a valid instance of self-defense. How is this so?

Take for example, a typical situation that occurs daily: Two friends are playfully joshing one another when one suddenly shouts at the other, “Napaka-TANGA mo naman!!!” in public. Feeling humiliated and slighted, and still smarting from other insults in the recent past, the recipient of the unflattering remark throws a hook punch at his insulter who, because he is proud holder of a yellow belt in Karate, is able to parry the blow and instinctively counters with his own gyaku zuki (reverse punch) to the attacker’s face, knocking out two front teeth in the process. In this situation, the novice Karateka shall be able to claim self-defense, because while he may have provoked his friend with his cutting insult, such provocation however was not sufficient to justify the use of violence. In other words, as the third element of the Justifying Circumstance—lack of sufficient provocation on the part of the person defending himself—is present, then our Yellow Belter can successfully assert that he was merely defending himself against his friend’s “unprovoked” attack.

What then would be “sufficient provocation”? For one, and as discussed previously, challenges to a fight, in which the combatants will be considered mutual aggressors, will almost always be certainly considered sufficient provocation coming from either combatant so as to nullify the claim of self-defense by anyone. Insults which are more than just annoying or irritating, unlike our example above, can actually be sufficient provocation if they are particularly or extremely harsh or vulgar. There will be no valid instances of self-defense under these circumstances.

Conclusion

With that, we finish our brief discourse on Self-defense. In review, the three (3) elements or requisites of SELF-DEFENSE under Article 11 of the Revised Penal Code of the Philippines are:

1. Unlawful aggression ;
2. Reasonable necessity of the means employed to prevent or repel it ; and
3. Lack of sufficient provocation on the part of the person defending himself .

Always keep in mind that all three requisites must be present in order to successfully avail of this Justifying Circumstance and be free from both criminal and civil liability for what would otherwise amount to a crime committed in the process of defending oneself. To cite another legal maxim: Actus non faci reu nisi mens sit rea—“The act itself does not make a man guilty unless his intention were so.”


Yame.