Criminalization of defensive violence in response to intimate partner’s aggression. bad law or vicious criminal practice?

ანოტაცია

This article discusses self-defense in the context of domestic violence. In Georgian reality, the boundaries of self-defense are generally narrowly defined; however, when self-defensive violence occurs in the family when the aggressor is an intimate partner and the defender is a woman, the accused faces even more barriers to justice, which is determined by gender stereotypes and traditional views on domestic violence. There is a difficult situation regarding femicide in Georgia; in 2021, 22 women were killed just because they were women. Women are killed by their intimate partners, and the antecedents of the murder are similar. Women turn to the police for protection from violence, but to no avail. In such a horrifying reality, where the state, whose obligation it is, does not protect a woman from a violent partner, limiting the right to self-defense is another violation of the state’s obligation to protect life and physical integrity. A correct and bold interpretation of the right to self-defense by the court is necessary to weaken the aggressor on the one hand and to strengthen the defender on the other hand. In the Georgian reality, by trivializing domestic violence and leaving it in the personal space, more barriers are created for women to reach justice by being obliged to endure the aggression of a tyrant husband/partner. In the article, the author tries to show by observing a judicial practice that artificial barriers limit the right to defend oneself against the aggression of an intimate partner; a woman is punished for injuring the aggressor, while the law should justify her. Single acquittals cannot change systemic injustice, but the author’s goal is to show and analyze such significant decisions so that more people can learn about correct judicial interpretations. According to the author, discrimination based on gender is characteristic of Georgian justice; by identifying problems and critically analyzing court decisions, she tries to show the ways of legal regulation of the problem. 

Keywords: Battered Woman, Self-defense, Family Tyrant

Introduction

The justification of necessary repulsion has been explained in many ways in philosophy or legal theory, including: consequentialism, double effect, and other doctrines.[1] This article supports the justification of repulsion on the grounds of human rights. A person has a right to life, freedom, dignity and other fundamental rights, therefore he has the right to protect himself from aggression. He has this right because he is a human being and no one can take this right away from him. Depriving a person of the necessary defense against aggression is like punishing a person for jumping out of the water and taking a breath of air. It is such a powerful instinct that dictates a person's efforts to protect himself from aggression, which is aimed at maiming, destroying or humiliating him. The correct and consistent definition of the boundaries of necessary repulsion is important for legal security, the exact knowledge of the norm is absolutely necessary for both the repeller and the initiator of violence. The first person should know - with what force and intensity he has the right to act against the aggressor, to know - what he will and won’t be punished for, in order to be brave and confident during self-defense; and for the other, it is important, because he should know that the aggression caused by him hurts him, may even end in his death, and no one will be punished for it. The law tells the aggressor not to dare use massive or intense force because it may backfire. The law also warns the aggressor that justice is on the side of the repulsor, strengthens him and does not shy away from aggression and disorder.

This article discusses necessary repulsion in the context of domestic violence. In general, in Georgian reality, the boundaries of repulsion are narrowly defined, however, when self-defensive violence occurs in the family, when the aggressor is an intimate partner, and the repeller is a woman, the latter faces even more barriers to justice, which is determined by gender stereotypes and traditional views on domestic violence. In Georgia, there is a serious situation in terms of femicide,[2] women are killed by their intimate partners, the stories before the murder are similar to each other. Women turn to the police for protection from violence, but to no avail. Also, there are many cases when a woman dies with the staff weapon of her partner, that is, the aggressor is a police officer, which led to the ineffectiveness of the system to protect the woman from the aggressor.[3]

In such a horrifying reality, where a woman is not protected from a violent partner by the state, whose obligation it is, limiting the right to repel is another violation of the state's obligation to protect life and physical integrity. In this reality, a correct and bold interpretation of the right of rejection by the court is necessary, on the one hand, to weaken the aggressor and on the other hand, to strengthen the repeller.

In the Georgian reality, by trivializing domestic violence and leaving it in the personal space, women (by being obliged to tolerate the aggression of a tyrant husband/partner) face more barriers in order to reach justice. Academic texts also strengthened the roots of everything. According to the old German doctrine, a woman's right to repulse was limited according to the so-called socio-ethical norms, if the aggressor was a family member. In this approach, the woman had to accept the violence or leave the house.[4] Today, this position is criticized in the German as well as in the Georgian doctrines,[5] but it seems that it still appears in the Georgian consciousness, among practicing lawyers.

The cases discussed in this article describe the reality that Georgian criminal justice, with a narrow definition of necessary repulsion, makes the initiators of violence stronger than the aggressors. The article discusses the defensive cases of the female partner in response to aggression committed in the context of domestic violence. A case where a woman was acquitted of causing serious health damage to her partner, but the prosecutor appealed to the cassation instance to punish her. In another case, a woman, who killed her partner with an ax before trying to rape her, was sentenced. Analyzing the case, it seems as if sexual violence is an insignificant act for the court, the law does not justify the use of mass force against it, which is not correct. The article will provide an analysis and critique of the cases to rethink the boundaries of necessary repulsion, which is in the interest of every citizen.

1. Is stabbing the aggressor in the back unequivocally revenge violence, or is there context?

The general court answered this question by analyzing the context and justified the action of the female defendant, who wounded the aggressor partner in the ring area from behind. This chapter will deal with the vicious practice of how the prosecution distorts the boundaries of the right of repulsion. The case is a good precedent in terms of the court's important clarifications, which will be useful to the defense in other cases, especially since this case was considered by the Supreme Court of Georgia.

1.1. Factual Circumstances

N.G. (repulsor) lived in a rented house with a male partner (K.S.) and children who had another father. On New Year's Day, the children wanted to talk to their father, NG fulfilled their request and called her ex-husband. This annoyed K.S. In order to punish him, he put his hands around NG's throat and choked him. The woman was gurgling and was so sick, her heart was beating. He managed to scratch the face of the abuser and thus freed himself in the first episode, but he was again caught by the aggressor, did not let him escape from the room, threw him on the bed and began to strangle him more brutally. At that time, the woman gathered her strength and asked the children to call the neighbor for help. The neighbor lived in the same house, in another room. She ran into the room and avoided the aggressor from the woman. During this period, the woman called 112, but the police was late. Soon the neighbor went to sleep in his room. After K.S. found N.G. in the kitchen left alone, he entered her again with threats and curses, his hands were directed to her throat to strangle her again, threatening to kill her. The woman pushed him, causing the aggressor to stumble and half turn away from her. At that moment, the woman grabbed a knife and hit the aggressor, fearing that when he regained his balance, he would attack with more aggression and would not be able to defend himself because he was all alone.

The prosecutor charged N.G. with articles 11¹, 117 (deliberate serious injury to the health of a family member) and fought to support the charge before the cassation instance,[6] he was not satisfied with the court's arguments regarding the justification of the action by necessary repulsion.

However, the proven facts so clearly point to the condition of necessary repulsion and the use of commensurate force by the repeller, it is surprising how there is room for different evaluations. Even if N.G.'s action, stabbing him in the back, caused K.S.'s death, it should still be justified, because killing is justified in order to stop the aggression of the growing danger to life and health. If N.G.'s aggressor had been wounded in the first episode, it would have been justified. The law does not require running away from a righteous person, using a risky means for self-defense. Thus, the court correctly assessed the situation, it emphasized the momentary nature of the danger, that although the aggressor was hit by a knife in the position of turning away from the repeller, the turning did not necessarily mean that the danger was neutralized, he only tripped, which temporarily prevented the aggression. The judge also emphasized the fact that N.G., due to his physical capabilities, could not defend himself without a knife and assessed his defensive strength proportionately. The action was also motivated by self-defense, not revenge.

In connection with this case, one more circumstance should be emphasized. K.S. was suffocated by N.G., and suffocation is a cruel form of punishment and control of a female partner, which is often used by domestically violent men.[7] The prosecutors of this and other cases assess suffocation with an inappropriately light standard, under Article 126¹ or 126 of the Criminal Code, i.e., as violence,[8] while suffocation is a life-threatening act and is assessed either under Article 117 (serious injury to health) or, when it is committed as a punishment, as in the discussed case, it should be considered as torture (Art. 144¹). If the intention is established, it is possible to assess it as an attempted murder (Art. 19, 109). The over-aggressive and dangerous act of an intimate partner is judged disproportionately lightly, and the defensive violence of the victim of this violence against the aggressor, disproportionately harshly, when it is clear that it did not go beyond the limits of justification. All of the above points to discriminatory justice and it needs to be changed.

2. Is murder justified by necessary repulsion in defense of rape?

This chapter deals with the second case from the case law, where a repulsor was sentenced for the murder of an intimate partner committed in order to protect himself from rape. Critical analysis turns to the narrow judicial definition of necessary repulsion.

2.1. Factual Circumstances

In the decision of the Rustavi City Court, we read: “[The aggressor] while drinking alcohol, systematically, including, verbally and physically, abused his wife, while drinking alcohol. Threatened to kill both her and her children. Performed various sexually violent acts [towards wife] (forced her to have sexual intercourse with him [...] including in the presence of minor children); in 2016 on the night of December [...], while trying to carry out another similar action, a person in a state of strong spiritual excitement - physiological affect [repulsor] intentionally killed her husband [aggressor] by hitting him in the face several times with an ax”.[9]

The court punished the accused for this act for murder committed in a state of strong spiritual excitement (Article 111). Necessary repulsion or killing beyond the scope of repulsion was not even discussed.

According to the described facts, the husband systematically abused his wife and children. He committed sexual violence against his wife, without her consent, and also used threats and violence to establish sexual relations, and this happened constantly. According to the court, during one of the following violent episodes, i.e. when the aggressor tried to rape his wife again, the latter stabbed the ax several times in the face of the abusive husband and killed him. The decision says nothing about the swinging power of the axe, nor about which blow was fatal. The court does not judge whether one blow was enough to neutralize the aggressor, also, it does not explain how many blows are "several times" - two, three or more? In the absence of answers to these questions, the doubt should be resolved in favor of the accused. It turns out that the repeller needed to swing the ax several times to neutralize the aggressor, she could not hit hard due to physical characteristics, the aggressor did not stop with the first swing of the ax, and time did not work in favor of the repeller.

The factual circumstances considered proven in the case indicate that the wife was a victim of systematic violence and was in a state of necessary repulsion during the killing of the aggressor, at which time she killed the aggressor. All the necessary objective and subjective signs for the justification of the murder are present, nevertheless, the repulsor was punished for the murder of the abusive husband. If there were questions regarding the scope of repulsion, it was necessary to consider it and evaluate the action under Article 113 of the Criminal Code, although the court did not allow the situation of repulsion at all. There was no procedural barrier for judging her to justify the repulsive action, as this assessment did not aggravate the situation of the accused. In the case, it is obvious that the woman was not beyond the scope of repulsion. She was physically weaker than the abuser, always lost in the fight with him and always succumbed to the violence. Under such circumstances, what guarantee could she have that one blow of the ax, not to the face, but to another part of the body, would be enough to neutralize the danger? The law does not require us to take unreasonable risks to trust an abuser. Also, we don't know the positions of the aggressor and the repeller, maybe she had to hit him in the face, because that was the only thing possible for her. In addition, it should be noted that initially the case was qualified by Article 108 of the Criminal Code and it was changed by the prosecutor only because the psychiatric-psychological examination report of the court was added to the case, which confirmed that at the time of the act the accused was in a state of physiological affect, “during which she could not fully control own action”. It turns out that, in the absence of such a conclusion, the repeller would be severely punished for an action that was within her right. To reframe the case where the wife killed her husband after violence, however soon, in such a situation it would have been correct to apply Article 111 of the Criminal Code, but in this case the danger, which the repeller used force to neutralize, was ongoing.

Article 28 of the Criminal Code defines the essence of necessary repulsion, it does not list by name what legal interest can be protected by defensive actions, although it is written in the law that it also applies to property rights, from which logically follows the consideration of other, more important goods under its umbrella. According to the definition of Article 28, the ratio of benefits, as well as the ratio of damages, is not necessary for the justification of repulsion,[10] in such a case the legislator would use the reference, as it is preserved in other similar norms, e.g. extreme necessity (Art. 30).

It is debatable as to which interest protection motive will be used to limit the killing of the aggressor. In relation to the protection of property, the justification of murder is controversial, although in Georgian academic texts, its justification is accepted with some reservations, e.g. referring to the vital importance of property and others.[11] As for freedom (e.g. during illegal deprivation of liberty),[12] sexual autonomy (during rape),[13] life, health, dignity (e.g. during torture), the killing of the aggressor is justified (if other conditions for the justification of repulsion are met). Necessary repulsion cannot justify the action, if in order to protect the legal good, the repeller interfered with a greater good than what was protected. It should be emphasized here that what the attacker tried to damage should be insignificant. As an example of this, the killing of a person for stealing an apple is sometimes cited in academic texts, such killing is not justified.

Killing the aggressor in defense against rape is justified in Georgian academic texts, no dissenting opinion was found in this regard. Rape violates a person's sexual freedom and dignity. Rape is a serious crime, it is the cruelest form of humiliating a person, so it is logical and very correct for the victim to have the right to kill the aggressor in self-defense, if the rape could not be avoided by other lighter means or it was risky. The justification for killing in defense of rape is also supported in foreign language academic texts and case law.[14]

Georgian criminal justice does not seem to share this opinion. Why? Does it consider women's sexual freedom as an insignificant legal interest? Or does it consider rape to be an insignificant act? Maybe it's because justice gives a husband a latent immunity for raping his wife? Such approaches should be unacceptable for a lawyer.

For the purposes of this article, it is important to note that in one homicide case where the victim was a transgender woman, the assailant's actions were justified by the first and second instance courts with necessary repulsion, even though the multiple wounds on the victim's body, the analysis of the context of the situation and the testimony of the witnesses, indicated the opposite of the testimony of the accused and there was no doubt to share the accused's version.[15] The Supreme Court of Georgia ultimately reversed the qualification by pointing to the very compelling evidence why the rebuttal version had not to be shared.[16] In the case referred to by the lower courts, the inappropriately broad definition of the right to repel and defining the essence of it in contrary, when in other cases, where self-defense is clear, but narrowly defined and punishing the accused,[17] must be explained by gender discrimination.

Conclusion

In Georgian judicial practice, there is a noticeable tendency to narrow the boundaries of necessary repulsion, this is done either by referring to the frivolity of the legal good protected by repulsion or by referring to the excess of the force used. Neither from the reading of Article 28 of the Criminal Code nor from the doctrinal interpretation, does it follow the requirement to narrow the boundaries of necessary repulsion on this basis. Necessary repulsion may be excluded if the good to be secured is insignificant compared to the good to be harmed, as in the relation between stealing an apple and murder. This article discussed the case of killing the aggressor while defending against rape. Human sexual freedom and dignity are protected from rape, trivialization of these values is not allowed, their protection, even by killing the aggressor, is allowed.

The article also discussed another case in which the repulsor was acquitted, but the arguments that the prosecution had and based on which it supported the trial for murder, its critical analysis was also important. During repulsion, it is possible that the aggressor will be hit by a defensive force from the back, which, a priori, does not exclude the situation of repulsion. It is important to analyze the context and show that the aggression was not over yet, which was evident in the case discussed in the article. The court saw this and acquitted the accused. Tendencies to narrowly define the norm of necessary repulsion in prosecutorial or judicial approaches when it occurs in the context of domestic violence indicate discriminatory approaches, which are not only indicated by these two cases, but also by many other studies. A fragmentary light, such as the decision of the Tbilisi City Court, which acquitted the woman, is not enough to change the vicious reality. More effort from the judges is important.

Bibliography

1. Dubber, M., Hörnle, T. (2014). A Comparative Ap­proach, Oxford University Press.


2. Fabricant, J. (1981). Homicide in Response to A Threat of Rape: A Theoretical Examination of the Rule of Justification, 11 Golden Gate U. L. Review, vol. 11/iss.3/7.


3. Kadish, H. S. (1976). Respect for Life and Regard for Rights in the Criminal Law, California Law Re­view, vol.64/4.


4. Leverick, F. (2006). Killing in Self Defence, Oxford: Oxford University Press.


5. Gamkrelidze, O. (2002). Offence Against the Per­son, Tbilisi: Institute of State and Law of the Georgian Academy of Sciences,


6. Gegelia, T. (2021). Non-Fatal Strangulation in the Context of Family Violence, Caucasus University Periodical Edition, Collection of Articles, vol. 2. (In Georgian)


7. Gegelia, T. (2022). Criticism of the Judicial De­cision due to the Limited Definition of Self-De­fense 23/8 (3). (In Georgian)


8. Lekveishvili, M., Mamulashvili, G., Todua, N. (2019). Particular Part of Criminal Law, Book 1, Tbilisi: Meridiani. (In Georgian)


9. Turava, M. (2011). The Doctrine of Crime, Tbilisi: Meridiani;


10. Jishkariani, B. (2016). Offence Against the Per­son, Tbilisi: The World of Lawyers. (In Georgian)


11. TKHELIDZE v. GEORGIA (Application no. 33056/17).


12. A and B v. Georgia, (Application no. 73975/16).


13. The Decision of the Great Chamber of the Su­preme Court of Georgia 2K-877ap.-20, March 29, 2021. (In Georgian)


14. The Decision of the Great Chamber of the Su­preme Court of Georgia 2K-640ap.-21, 09.09.2021. (In Georgian)


15. The Decision of the Great Chamber of the Su­preme Court of Georgia 2k-424ap.-16, 30.12.2016. (In Georgian)


16. The Decision of Rustavi city court, 2017 April. (In Georgian)

Footnotes

[1] For the analysis of the theories of justification of self-defense see: Leverick, F. (2006). Killing in Self Defense, Oxford: Oxford University Press, 43-68.

[2] See: Monitoring reports of Public Defender of Georgia on femicide by year. https://om­budsman.ge/geo/201117012751angarishebi [Last seen: 01.09.2022].

[3] The most famous cases in this regard are: TKHELIDZE v. GEORGIA (Application no. 33056/17), 08.10.2021; Case A and B v. Georgia (Application no. 73975/16), 10.05.2022.

[4] For the historical analysis, see: Dubber, M., Hörnle, T. (2014). A Comparative Approach, Oxford University Press, 418-419.

[5] Turava, M. (2011). The Doctrine of Crime, Tbilisi: Meridiani. 366-367.

[6] The Decision of the Great Chamber of the Supreme Court of Georgia 2K-877ap.-20, March 29, 2021.

[7] Gegelia, T. (2021). Non-Fatal Strangulation in the Context of Family Violence, Caucasus University Periodical Edition, Collection of Articles, vol. 2.

[8] See: The Decision of the Great Chamber of the Supreme Court of Georgia 2K-640ap.-21, 09.09.2021.

[9] The decision of Rustavi city court, 2017 April (Public Information Request # 303, March 9, 2020).

[10] Gamkrelidze, O. (2002). Commentary on article 13 of the Criminal code of Georgia, in the book: Offence Against the Person, Tbilisi: Institute of State and Law of the Georgian Academy of Sciences, 75; Turava, M. (2011). The Doctrine of Crime, Tbilisi: Meridiani, 344.

[11] Jishkariani, B. (2016). Offense Against the Person, Tbilisi: The World of Lawyers, 70-71; Gamkrelidze, O. (2002). Commentary on article 13 of the Criminal code of Georgia, in the book: Offence Against the Person, Tbilisi: Institute of State and Law of the Georgian Acad­emy of Sciences, 75.

[12] Turava, M. (2011). The Doctrine of Crime, Tbilisi: Meridiani, 344; Gamkrelidze, O. (2002). Commentary on article 13 of the Criminal code of Georgia, in the book: Offence Against the Person, Tbilisi: Institute of State and Law of the Georgian Academy of Sciences, 76.

[13] Todua, N. (2019). Particular Part of Criminal Law, Book 1, Tbilisi: Meridiani: 92-93; Turava, M. (2011). The Doctrine of Crime, Tbilisi: Meridiani, 344.

[14] See: Leverick, F. (2006). Killing in Self Defence, pp. 143-158; Fabricant, J. (1981). Homicide in Response to A Threat of Rape: A Theoretical Examination of the Rule of Justification, 11 Golden Gate U. L. Review, vol. 11/iss.3/7, pp. 945-980; Kadish, H. S. (1976). Respect for Life and Regard for Rights in the Criminal Law, California Law Review, vol.64/4, p. 888.

[15] For the analysis of the case, see: Legal analysis of Sabi Beriani case. (2017). Social Jus­tice Center https://socialjustice.org.ge/ka/products/sabi-berianis-sakmis-samartlebri­vi-shefaseba [Last seen: 20.09.2022].

[16] The Decision of the Great Chamber of the Supreme Court of Georgia 2k-424ap.-16, 30.12.2016.

[17] Gegelia, T. (2022). Criticism of the Judicial Decision due to the Limited Definition of Self-Defense 23/8 (3), 140-152.