Wednesday, 3 August 2011

Pre-emptive striking - how do you define it?

Pre-emptive striking is one of those things that causes me some confusion in relation to self-defence and the law. There has been a lot of talk about it recently in the blogosphere – see: Should a practitioner use the pre-emptive strike for self-defence? And, Mind the Gap – Part V – The Law – a follow up.

Pre-emptive striking IS admissible in law (UK) as a form of self defence “…if [they] honestly believe that the circumstances demand it. This means that a person can use force if they believe that there is a threat of imminent violence if they do not act first.” Louise Smith, Barrister.

My question is – how ‘pre’ (in terms of time, distance and circumstance) can a pre-emptive strike be and still be a legally acceptable defence? People talk about the attack being ‘imminent’ but how imminent do they mean? Within half a second? A few seconds? Half a minute?

There seems to be a continuum which goes from attack through to pre-emptive strike to counter-attack depending on the timing of your strike. Strike after a punch or kick is coming towards you (whether it hits you or not) and you are counter-attacking. Strike before any punch comes your way and you are attacking. Or are you?

Take the following scenarios, read them and ask yourself whether the ‘victim’ became the attacker or merely launched a pre-emptive strike that could be proved admissible in court:

1.       You are a woman, it’s late at night and you are walking home alone. A man approaches you out of the shadows. He seems fairly relaxed in his body language with his hands in his pockets. He tries to talk to you, to detain you but he doesn’t touch you or take his hands out of his pockets.  He smells of drink and you feel uncomfortable in his presence. He is invading your personal space and you feel threatened. You try to walk away but he follows you, still talking to you. You are between him and a wall and you feel penned in even though you can still walk along the street. Ahead the building juts out into the street creating a corner that you can be trapped into. You are confused as to whether he is just a harmless old drunk just trying to talk to you or a predator who has a knife in his pocket.  You start to panic as you approach the corner and decide to strike him to give yourself a couple of seconds to run off. Is this an attack or a pre-emptive strike?

2.       You are a young man, its broad daylight and you are in a public place with other people about. A group of 3 youths approach you and start to taunt you. You recognize one from school days – you had been on the receiving end of his punch in the playground once. They are laughing at you and reminding you what a ‘nerd’ you were at school. You feel threatened and humiliated. They jostle around you and you keep moving backwards. The only place to run to is an alleyway directly behind you but you know it has a dead end. You are worried that you might be on the receiving end of that punch again so to get away you decide to barge directly through them using a shoulder charge. As you charge you think you feel someone grab the back of your coat and you turn and strike the person you think it is. You then run away. Was the shoulder charge an attack, pre-emptive strike or neither? What about the strike?

I don’t find it easy to decide the answers to my own questions regarding these scenarios. Perhaps you can give me your opinion or your definition of a pre-emptive strike….

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Charles James said...
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Charles James said...

Scenario 2: The shoulder charge is a valid defensive move to break through a group threat, in my view. Your feeling an aggressive move from behind, striking and running are also, my view, indicative of a defensive move. So, compared to the first scenario this one is a no brainer. Still, that caveat, you have to have the ability to explain it well if it goes to court. Your fear due to past history is valid, my view, and that it resulted in your attempt to flee the situation also valid, my view. So, in a nutshell, if the person on the receiving end of the shoulder charge is hurt, tuff shit. If the strike hurt the attacker from the rear, tuff shit. If you are safe and unhurt, good for you.

Oh, regardless of whether you are charged and tried. You can expect the family and the attackers to know that a civil suit is possible and that winning is possible to gain money. Again, can you explain it?

Cool Sue! Remember, my view ... any actions and such must be yours and yours alone for the moment, that moment so take it with a grain of salt.

Anonymous said...

There's little sense in discussing hypothetical cases or rehashing legal definitions so I'm going to give you some useful tips for dealing with that kind of situation. It's always best to adopt a defensive stance (open hands to signal non-violent intent), step back if possible and loudly tell them you don't want to fight and they should leave you alone. Repeat this while retreating. If they keep coming at you or you can't escape attack first. This gives you the best chance of survival while signaling to possible onlookers (i.e potential witnesses in a court case) you weren't looking for a fight. Always remember to err on the side of caution: you'd rather be explaining yourself to a police officer or a judge than end up dying from a stabwound or spending the rest of your life in a wheelchair because you hesitated.

First avoid or talk your way out of it if possible, if not: strike hard, strike first and strike often. If you're an upstanding citizen (no criminal record, no history of agression, not being in a shady place, not being drunk or high at the time) and you followed the rules stated above you have a good chance of avoiding nasty legal trouble. When talking to the cops stay calm, avoid embellishing your story and emphasize you were afraid for your safety (don't play the hero or the valiant martial artist) and you tried to avoid fighting. Stick to your story, be polite and don't get mad when being asked to come down to the station or treated as a potential suspect (they're only doing their job and they don't know you).

SueC said...

Charles, re: scenario 1. I accept entirely all the advice you give about what she should have done to avoid the situation or other actions she could have done to escape sooner. However, this does not answer the question I was asking. What I really want to know is, in the scenario as described did she strike too soon? So, was her strike an acceptable pre-emptive action in the circumstances as given or was her action too premature and therefore difficult to defend?

I agree with you that scenario 2 is a little more clear cut and the young man's actions are probably acceptable as self defence. Thanks for you comments.

Anonymous, thanks for your tips, it's all really useful stuff. However, as I said to Charles it doesn't answer the very specific question that I asked which is basically: how pre can pre-emptive striking be and still be classed as self-defence? I think that specific scenarios are an ideal way to get people to really pin down a very specific answer. After all if we can't analyse the actions of specific situations and come up with objective, unambiguous answers how do we learn to put into words a suitable defence of our actions if we ever have to do in court?

Charles James said...

Sue, scenario one, too soon ... it could be thought of as aggression here in California.

Thanks once again for your feedback and insights.

Journeyman said...


I believe that scenario discussions are valuable. That said, each and every situation will be based on the totality of the circumstances.

Scenario #1. Great scenario. Did she strike too soon? Depends. The question that came to my mind is whether or not any communication was used. Did the woman tell the man to go away? I only mention this as communication is an important part of avoiding or dealing with potentially violent situations.

I would say that if the woman told the man to leave her alone, not only is she creating positive witnesses, but she is making clear that his attention and/or contact is unwelcome. If he continues to try to engage or follow, he is now actively pursuing a potentially illegal act.

I would also want to know what kind of strike was used and was it only used to make good her escape? If she hit and ran, that would show the intent was to escape, not injure.

I know all that doesn't really answer your question, it has more to do with justifying the action after the fact.

Bottom line:

If the woman honestly felt threatened and in immediate or impending danger and could not find another way to get out of the situation (screaming, running away etc.) then I think she would be justified in the preemptive strike.

I hope this helps a bit. Good discussion piece.

Thanks for the mention of my post.

Charles James said...

Just FYI as to the complexities of SD, Dojo Rat provided this snippet of an article worth reading:

John W. Zimmer said...

Hi Sue,

This is easy for me as I have a rule to go by although I am not sure it is the same as the law.

If you are at all threatened by someone getting too close - tell them to back off and let them know with body language and verbally you will defend yourself.

If they encroach on you distance you strike - doing what you have to - to get away.

My reasoning is if you let someone get inside your critical distance, the first one to strike generally wins. This is because a good fighter will not pull back a punch and let you know he is about to strike but rather hit you before you have a chance to react and then pile on.

So my simple rule works to keep you safe. What a person has to do is get over any shyness because the possible opponent has not announced his intentions and if the hairs on your neck go up - take control and tell him to get the #$%# away from you.

If he did not mean you any harm - he will back away and leave you alone. If he did mean you harm - he will attack - but from outside your distance (giving you a chance to preemptively strike him first).

Legally you should be ok by backing away and getting ready. That would be my argument anyway... my life is more important then giving away an advantage.

Indecisiveness however will lead to a hole in a person's defense. Whatever else can be said about me - I am not indecisive... someones gonna know to back off if I feel threatened. :)

John Coles said...

SueC - you've raised another very interesting, important, and contentious issue as always. You'll receive many opinions. Not meaning to be rude, but it evocatively states the point: opinions are like arseholes; everyone has one.
(a) Our law is based on precedent, so, the answer to your question lies in legal precedent.
(b) Your use of scenarios is exactly the way to explore this issue. You try and find precedent that helps you decide based on related facts.
(c) Anything based on perception is problematic for the courts. Eventually, they tend to resort to the 'resonable person' or someone to that effect. A person that has been previously assaulted may appraise a situation vastly different to one that has not. Were their actions guided by their appraisal that are biased by their experience 'reasonable'?

This then suggests a feature of self defence/martial arts training. We should be teaching people to accurately, and reasonably, appraise situations to determine if it is threatening, and if so, to what degree. This subject is part of my book Beyond Fight or Flight. Fascinating subject.

Etali said...

In the second scenario, the "victim" is already being jostled, so a loud "Get your hands off me" followed by some form of action if they don't move should be perfectly acceptable in the eyes of the law?

For the drunk, I'm not sure what I think. I've been in a similar situation with a strange, but not quite "my spider sense is tingling" drunk giving me hassle. He did eventually escalate the situation, and I was forced to respond. I'm not sure whether a pre-emptive strike would have made things better or worse, though. As it was, I managed to get out of the situation OK, but the few minutes it lasted felt like hours.

My concern is that some drunks are just clumsy, slow, angry types. Others are raging bulls that don't feel any pain. If you escalate the situation with a drunk that is barely going to blink when you hit them, what good does that do you? Maybe you could sweep them to the floor and run away really fast, but I'd only recommend doing that if you are in a familiar area and have somewhere to run too...

It's a tough one.

SueC said...

Journeyman, I can see now that there isn't a clear cut answer to my question! I can entirely see the need for the woman to vocalise loudly that she doesn't want his attention and that this action may make all the difference to how her subsequent actions are perceived by witnesses/police. This is one of the values of scenario analysis (particularly with a law enforcer!)-you are able to see how each persons actions are perceived by different parties i.e the police, witnesses etc. Its useful to be working out what you can/can't, should/shouldn't do in a particular scenario in this artificial way so that you don't have to worry about it during the real thing. Thanks for your input.

Charles, thanks for this, I'll give it a read ;-)

John Z, the tactically superior strategy vs the legally acceptable one...this is something we have to weigh up in a split second. Making those split second decisions is definitely the hardest part about self-defence and is another reason why scenario analysis is a good idea. Thanks for your comment.

John C, your points articulate the situation very well. I agree with you that an opportunity to appraise various self-defence situations should be included in self-defence training. The more you understand about legal precedent in these situations and what is reasonable the less you will need to think about it during a real situation, giving you more time to just defending yourself. Thanks for your comment.

Etali, I'm glad you got out of your situation okay. You're right to point out that a drunk may behave in an unpredictable manner and you need to be careful not to escalate the situation. Thank you.

Ninja Training Techniques said...

It's always a very, very sticky situation, I'd think. One can argue that a pre-emptive attack was too pre-emptive. I've never had to use one—thankfully!—but I'd say that a person just has to use the best judgement they possibly can and hope for the best.

SueC said...

NTT, I think you are probably right - I just hope I never have to make that judgement for real!


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