Lethal self-defense against a rapist and the challenge of proportionality: Jewish law perspective.

• Author: Porat, Benjamin
• Position: Introduction through III. 'In Pursuit of a Maiden' - The Theoretical Law (Halakha

Abstract

Is a victim of sexual assault permitted, similar to a victim of a life-threatening attack, to defend herself by using deadly force against the attacker? While the practical significance of this question is quite self-evident, of no lesser importance are its theoretical foundations, mainly with regard to the conceptual question of proportionality. This Article will analyze the issue from a Jewish law perspective, alongside an intensive comparative legal discussion. Jewish law appears to present an approach far more complex than what may be gleaned at first blush, weaving together two parallel and complementary realms: on the level of theoretical law, Jewish law maintains complete proportionality between the severity of the assault and the measure of self-defense employed to repel it, and as a result limits the permissibility of killing a rapist in self-defense. However, the unique design of the law gives rise to an additional level of law in practice, in which deadly force against a potential rapist is broadly sanctioned in nearly all cases, and prohibition of such self-defense is rare to non-existent. In practice, the principle of proportionality is interpreted leniently, in favor of the victim. This duality is of great significance, allowing the law to mold a complex approach capable of embodying numerous contradictory considerations. Such duality may lend a new perspective to the current discourse in legal literature on this issue, fostering conceptual diversity in the study of self-defense.

INTRODUCTION

Criminal law widely recognizes and justifies the use of force by a victim against an attacker, at times even in lethal measure, when such action is taken in self-defense. (1) When the life of a potential victim can be spared only by employment of deadly force against the assailant, it is permissible (2) for the victim or, alternatively, a third-party passerby coming to her assistance, (3) to protect the victim's life even at the expense of the attacker's. This right to self-defense has been recognized since antiquity, (4) and has been accepted in Jewish law from time immemorial? In Jewish sources going back as far as the mishnaic period, (6) the sages related: "The following must be saved even at the expense of their lives: he who pursues after his neighbor to slay him...." (7) The following Article will examine whether a potential rape victim, or alternatively a third-party passerby attempting to rescue her, may employ deadly force against the would-be rapist, should his death be the only effective means of preventing the rape. (8) Is a potential victim of sexual assault permitted, similar to a victim of a potentially life threatening attack, to use deadly force against her attacker, or rather is the former limited exclusively to non-life threatening forms of self-defense? (9)

While the practical significance of this question is quite self-evident, of no lesser importance are its theoretical foundations: as I will elaborate upon further, the use of lethal force against a potential rapist presents an instructive test case, shedding light on broader conceptual questions relating to the doctrine of self-defense in general, and concerning the requirement of proportionate force in particular.

The following Article will focus on the Jewish law approach to this issue, alongside a comparative legal perspective. (10) I will argue that the Jewish law approach differs sharply from the currently accepted approaches in most major modern legal systems. Furthermore, Jewish law presents an approach far more complex than what may be gleaned at first blush, weaving together two parallel and complementary realms: theoretical law (halakha) and law in practice (halakha le-ma'aseh). (11) On the level of theoretical law, Jewish law distinguishes between different categories of potential rape victims by their marital status, allowing the use of deadly force in self-defense by some but not others. This position stems from a general policy of maintaining complete proportionality between the severity of the assault and the measure of self-defense employed to repel it. However, the unique design of the law gives rise to an additional level of law in practice, in which deadly force against a potential rapist is broadly sanctioned in nearly all cases, and prohibition of such self-defense is rare to non-existent. In practice, the principle of proportionality is interpreted leniently, in favor of the victim. This duality is of great significance, allowing the law to mold a complex approach capable of embodying numerous contradictory considerations. Such duality may lend a new perspective to the current discourse being held in legal literature on this issue, fostering conceptual diversity in the study of self-defense.

Furthermore, the very distinction within Jewish law between theoretical law (halakha) and law in practice (halakha le-ma'aseh), as exemplified in this case, can itself enrich and inform the current legal discourse, particularly in the context of American legal realism, pertaining to the distinction between written law and the law in practice. (12)

The argument presented in the following Article is comprised of several stages. Following the introduction, Part I will be dedicated to a discussion of the unique characteristics of rape crimes in the context of the requirement of proportionality. Part II will review the subject of deadly force against a potential rapist in several major modern legal systems. Part III will present the apparent approach of Jewish law, as perceived at first blush, within the realm of halakha. In contrast, Part IV will discuss three factors underlying the differing position of Jewish law as applied in practice (halakha le-ma'aseh). The Article concludes with discussion of various aspects and meanings of this duality.

1. The Proportionality Requirement: Rape as a Test Case

   There are several accepted conditions for the legitimate use of self-defense. (13) One of these conditions, at the focus of this Article, is the requirement of proportionality. In the following pages I will discuss several theoretical aspects of this requirement.

   1. The Degree of Proportionality

      Is a victim acting in self-defense necessarily required to maintain proportionality between his own interests (jeopardized by the assault), and the interests of the attacker (jeopardized by the act of self-defense)? This is no simple question, particularly in complex "gray" cases to be discussed further on, and much literature has indeed been written on the subject. (14) It stands to reason, for instance, that killing an attacker would be a reasonable act of self-defense in the context of attempted murder, whereas it would seem wholly disproportionate and unreasonable in the context of petty theft. (15) However, what would be the appropriate norm in more complicated cases? For instance, do kidnapping or unlawful imprisonment (under non-life-threatening circumstances) justify killing the attacker in self-defense? May public humiliation, such as public lashing, be prevented through any effective measure of self-defense, including the use of lethal force? (16)

      These questions allow for a spectrum of answers. One possibility is to fully adopt the principle of proportionality, thus conditioning any act of self-defense upon the maintenance of precise proportion between the attack and the measure of force used to offset it. (17) For instance, if the attacker is attempting to injure the victim, (18) the victim may fend off the attack only by use of self-defense in a measure not exceeding that employed by the attacker. (19)

      Alternatively, self-defense may be conditioned on a firm, albeit not necessarily absolute, standard of proportionality, whereby the victim would be permitted to act in self-defense even in a measure slightly more severe than that of attack itself, nonetheless upholding a high level of proportionality. Should the attacker attempt to cause severe bodily harm to the victim, the victim may prevent such an attack even by killing the attacker. However, should the attacker attempt to cause mild bodily harm to the victim, killing the attacker would be disproportionate and therefore unacceptable.

      Going further on the spectrum, yet another approach may suffice in a flexible standard of proportionality, within which even certain severe crimes against property may be prevented by killing the perpetrator.

      Diverging from all of the above approaches, one may even go so far as to suggest rejection of the proportionality requirement in self-defense altogether, whereby the prevention of any attack whatsoever would sufficiently justify all effective measures of self-defense, including taking the life of the attacker, (20)

      Deciding between the different...