Crimes and Offenses Defenses to Criminal Prosecutions: Provide That Person Who Is Attacked Has No Duty to Retreat; Provide Immunity from Prosecution

JurisdictionGeorgia,United States
Publication year2010
CitationVol. 23 No. 1

Georgia State University Law Review

Volume 23 , „

Article 7

Issue 1 Fall 2006 '

3-21-2012

CRIMES AND OFFENSES Defenses to Criminal Prosecutions: Provide That Person Who Is Attacked Has No Duty to Retreat; Provide Immunity from Prosecution

Georgia State University Law Review

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Recommended Citation

Georgia State University Law Review (2006) "CRIMES AND OFFENSES Defenses to Criminal Prosecutions: Provide That Person Who Is Attacked Has No Duty to Retreat; Provide Immunity from Prosecution," Georgia State University Law Review: Vol. 23: Iss. 1, Article 7.

Available at: http://digitalarchive.gsu.edu/gsulr/vol23/iss1/7

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CRIMES AND OFFENSES

Defenses to Criminal Prosecutions: Provide That Person Who Is Attacked Has No Duty to Retreat; Provide Immunity from

Prosecution

Code Section:

Bill Number: Act Number: Georgia Laws: Summary:

Effective Date:

O.C.G.A §§ 16-3-2 (amended), §51-11-1 (amended) SB 396 599

2006 Ga. Laws 477

The Act clarifies and amends Georgia law regarding the justifiable use of deadly force and the duty to retreat. Its purposes are to extend the protections of the castle doctrine beyond one's home, vehicle and business to anywhere one has the legal right to be; to codify explicitly Georgia's position on the duty to retreat; and to protect those standing their ground from criminal prosecution and civil liability. July 1,2006

History

A typical retreat rule, or duty to retreat, holds that the victim of a murderous assault must choose a safe retreat instead of resorting to deadly force in self-defense, unless (1) the victim is at home or in his or her place of business (the so-called castle doctrine), or (2) the assailant is a person whom the victim is trying to arrest.1 The rationale for this doctrine is that a human life, even that of an aggressor, is more important than the dignity or property interest of the other party in standing his or her ground.2

1. Black's Law Dictionary (8th ed. 2004) (emphasis in original).

2. Id. (quoting George E. Dix, Justification: Self-Defense, in 3 Encyclopedia of Crime and Justice 946, 948^*9 (Sanford H. Kadish ed., 1983)).

28 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 23:27

The Duty to Retreat in Georgia

Prior to 2006, Georgia statutory law did not explicitly impose a duty to retreat on victims of attack who took the life of their assailant. The Georgia Code required aggressors and persons involved in combat by consent to show that they withdrew from the encounter and effectively communicated to the other person their intent so to do.4 However, persons who had taken no part in the instigation of a violent or potentially violent encounter had no duty to retreat under Georgia Code, even when away from their homes.5 Code section 16-3-21 stated that "a victim of an attack is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony."6 While there was no statutory duty to retreat in Georgia, and thus no requirement for a codified castle doctrine excepting a residence,7 the Code nevertheless eliminated the requirement that force be met with no greater than equal force when acting in defense of a habitation.8

If the person claiming the affirmative defense of justification was not the aggressor, Georgia courts did not imply a duty to retreat where the Code was silent.9 In 1898, the Georgia Supreme Court outlined the rule for victims of attack, holding that there is no duty to retreat "if the circumstances are sufficient to excite the fears of a reasonable man that a felonious assault is about to be made upon him, and the slayer, who is free from blame, acts under the influence of such fears."10 Since then, Georgia courts have confirmed the absence

3. See generally 2001 Ga. Laws 1247 (formerly found at O.C.G.A. § 16-3-21(a) (Supp. 2005)).

4. 1968 Ga. Laws 1272, 1273 (formerly found at O.C.G.A. § 16-3-21(b) (Supp. 2005)).

5. 2001 Ga. Laws 1247,1248 (formerly found at O.C.G.A. § 16-3-21(a) (Supp. 2005)).

6. Id.

7. See id.

8. See, e.g., 2001 Ga. Laws 1247, 1248 (formerly found at O.C.G.A 16-3-23(2) (Supp. 2005)) (stating a person may use deadly force to defend entry into his or her habitation if it is used against someone who is not a member of the family or household and who has unlawfully and forcibly entered the residence when the person knew or had reason to believe that the entry had occurred).

9. See, e.g., Dukes v. State, 568 S.E.2d 151, 152-53 (Ga. Ct. App. 2002) (quoting Johnson v....

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