Art. 11 Revised Penal Code

JUSTIFYING CIRCUMSTANCES

Introduction: The Use of Force Defenses: These are the justifying circumstances where the accused is allowed to use force i.e. to inflict injury upon the victim or to destroy property. The force may either be (i) Deadly Force or that which can result to serious physical injuries or even to the death of the victim and (ii) Non-Deadly but reasonable force.

 The Use- of-Force-Defenses include (i) self-Defense (ii) Defense of Relative and (iii) Defense of Stranger.  

Par. 1. SELF DEFENSE

I. Concept: When a person uses force and causes injury to another or destroys the property of another, in order to defend his own person, rights, property or honor against an aggression/attack coming from the victim.

The elements:  It requires proof of the  existence of an: (i)  unlawful aggression, (ii) the reasonable  necessity of the means employed to prevent or repel the attack and (iii) the lack of sufficient provocation  on the part of the accused. The first two are common to the three Use-of- Force- Defenses. 

 II. First element: There must be present an unlawful aggression coming from the victim.

 A. This refers either to:

1. Real or Material Aggression or an attack that has broken out or has actually materialized. Examples; the act of shooting another’s with a gun; hitting another with or without a weapon; trespass to another’s property; running away with another’s  property; uttering slanderous words; publicizing or broadcast of libelous matters.

2.  Imminent  or one which is at the point of happening. They refer to acts of the victim which show a clear and positively strong intention to cause harm to the accused, which can only be prevented through the use of force.

These are more than mere threatening attitudes, or oral threats or threatening stance or postures

B. An aggression is more serious that an act of simple provocation by the victim.

C. This element is the foundation of the Use of Force Defenses. It has to be proven otherwise there is nothing to defend against

D. Principles:

1. The aggression must be “unlawful” i.e. the victim was not acting in accordance with laws, or under color of right. Thus the following do not constitute “unlawful” aggression: (i) the act of a property owner in pushing out an intruder for refusing to leave peacefully (ii) the act of a policeman in handcuffing a law violator (iii) the scolding by a teacher of an unruly student.

2. The aggression must come from the victim.

3. At the time of the defense, the aggression must still be continuing and in existence. In the following instances there is no more aggression and if the accused still uses forces, he becomes the aggressor:

 a). When the attacker desists, or is prevented or restrained by third persons; or is divested of his weapon, or is overpowered

 b). When the attacker retreats unless it is to secure a more vantage position 

4. Question: When the person attacked was able to wrest the weapon or has disarmed his attacker, may he use the weapon against the attacker?  Answer: No because the aggression has ceased unless the attacker persist to grab back the weapon for in such case, there is still imminent danger to his life or limb.

5. Thus: there must be no appreciable lapse of time between the unlawful aggression and the act done to repel or prevent it     

6. Presumption as to the Aggressor: Where there is no direct evidence who was the aggressor, it may be presumed that the one who was deeply offended by the insult was the one who had a right to demand an explanation from the perpetrator of the insult and he must have been the one who struck first if the proffered explanation was unsatisfactory (PP. vs. Ramos, 77 Phil. 4) 

E. At what point may a person attacked put up a defense?

1. Retreat-to-the-Wall Principle. –The doctrine which states that before a person is entitled to use force in self defense he must first attempt to withdraw from the encounter by giving as much ground as possible and it is only there is no more place to retreat that he may now use force to defend himself.

    This doctrine is impractical and has been abandoned

2. Stand-Your-Ground-When-In-The-Right Principle.- The doctrine which holds that when a person is attacked in the place where he has a right to be, he need not retreat but he may immediately use force to defend himself.  

a). This is the prevailing doctrine followed. It applies to all especially to law enforcement agents who are expected to stand their ground and to subdue, overcome and arrest criminals.

b) A related doctrine is the Castle Doctrine.-When a person is attacked in his dwelling (a man’s house is his castle) he is not expected to retreat but he may immediately use force to defend himself and his dwelling. This is availed of where armed persons intrude into a dwelling as it is natural to expect that the armed persons would use their weapons at any time and upon any occupant of the dwelling.

F. May the attacker claim self defense?

1. As a rule one who initiates an attack cannot claim self defense being himself the aggressor.

2. However he is entitled to an incomplete self defense: (a) if he is met with excessive force in return and is forced to defend himself or (b) When he withdraws or retreats from the attack but is pursued by the intended victim and he had to defend himself.

G. Rule when there is an agreement to a fight or when one accepts a challenge to a fight. Neither one can put up self defense because each is an aggressor to the other and both anticipate the aggression coming from the other. The law leaves them where they are. Except when one is attacked by the other in violation of the terms and conditions of the fight, such as to the time, place and choice of weapons agreed upon, then the person attacked may claim self defense.

III. Second element: There must be reasonable necessity of the means employed to prevent or repel the attack. .

A. The question is whether the defense is appropriate and commensurate to the type, degree, and intensity of the aggression taking into consideration the place, occasion and surrounding circumstances of the aggression.

B. The reasonableness of the means include two aspects: (1). Reasonableness of the Mode of Defense and (2) Reasonableness of the Choice of Weapon. A person under attack has the right to defend, but as it proper for him to sue a weapon and if so, whether the weapon chosen is commensurate to the attack.   

 C. The law requires Rational Necessity and Rational Equivalence of Weapons and not Factual Equality, to be determined by considering both the subjective and objective aspects of the situation. They include the following:

1. The imminence of the danger as it appeared to the accused coupled by the instinct for self-preservation

 2. When the attacker is armed, consider the instrument of aggression and the means of defense most readily and immediately available to the person attacked

 3. Consider the physique, size, age, sex, knowledge of martial arts (the hands and feet of boxers, martial artists, wrestlers, are considered deadly weapons) of the attacker and the person attacked, including the reputation of the attacker as a person of violence

 4. Consider whether under the time and place of the attack, the person attacked can call for immediate assistance

 5. Consider the number of the attackers   

     D. When can Deadly Force be used?

1. When there is an attack on a person’s life or limbs i.e. he may either be killed or seriously injured

2. In case of an attack upon one’s property, it must be coupled with an attack on the person’s life or limb which promises death or serious bodily harm, otherwise only reasonable force must be used.

         If there is no attack on the person’s life or limb, reasonable force may still be used as is necessary to protect the property from being seized, destroyed or interfered with under the Doctrine of Self Help provided for In Article 429 of the New Civil Code.

3. In case of an attack on chastity, deadly force is allowed if there is a clear intent to rape, which intent maybe negated by the circumstances of time and place; if there is no clear intent to rape only reasonable force must be used

4. In case of attack on one’s honor or reputation, the use of physical force is never justified. When one is libeled or defamed, he may fight back with a similar libel or defamation provided it is only to the extent which is necessary to free himself from the effects of the libel/defamation. This is called the “Doctrine of Justified Libel” or “The Privilege of a Reply Doctrine”.

5. The Principle of Self defense and Use of Deadly Force does not apply to situations where a person is injured or killed as a result of the installation of Protective Devises/Methods such as by the installation of live electric wires on a fence, or by attack dogs let loose in one’s yard.

IV. The third element: Lack of Sufficient Provocation on the part of the Person Claiming Self Defense.

A. Concept: The person attacked must not have given sufficient reason for the victim to attack him.

B. Provocation: This includes any conduct which excites, incites or induces a person to re-act, it is conduct which vexes or annoys, irritates or angers another. 

C. This third element is present in any of the following situations:

1. When no provocation at all was given by the accused.

 When a property owner angrily demands why the victim built a fence on his land, which in turn angered the victim to attack the accused, such conduct on the part of the accuse is not provocation.

2. When there was provocation but it was not sufficient i.e. it may have vexed or annoyed but was not sufficient for the victim to make the kind of attack he employed upon the accused. The sufficiency must be measured in relation to the reaction of the victim

3. When sufficiency provocation was given but it was not immediate to the attack

D. Examples of sufficient provocation:

1. Imputing to the victim the utterance of vulgar language

2. Trespassing into the property of the victim

3. Jokes made in poor taste or bad mouthing the victim

4. Destroying the victim’s property

DEFENSE OF RELATIVE

I.. Relative: They refer exclusively to the persons’ spouse, ascendant, descendant, brothers of sisters; relatives by affinity in the same degree; and by consanguinity within the 4th civil degree

II. The third element: The One Defending Had No part in the Provocation.

A. This is present in the following instances:

1. The relative defended did not give any provocation at all

2. If the relative gave provocation, the one defending was not aware of it

3. If the relative gave provocation, the one defending did not participate either actually or morally, as by encouragement

B. Even if the person defending acted out of evil motive, such as revenge, this defense is still available

DEFENSE OF A STRANGER

I. Stranger is any person not a relative.

II. The third element: The Person Defending Should Not Be actuated by Revenge, Resentment, or Other Evil Motive

A. The accused must prove he acted out of an honest desire to save the life or limb or property of the stranger and not because his true intention was to harm the victim. If otherwise he is deemed to be committing a crime there being present the elements of actus reus and mens rea.

B. QUESTION: Suppose it was the stranger who gave provocation? The accused is entitled to this defense.  

RELATED PRINCIPLES TO THE USE OF FORCE DEFENSES

I. Rationale behind these defenses:

A. For self defense: 1. It is the natural and inherent right of every person to defend himself 2. The state cannot protect its citizens at all times hence it gives them the right to defend themselves

B. For Defense of Relative: It is in recognition of the strong ties of blood i.e. blood is thicker than water.C. For Defense of Strangers: What a man can do in his defense, another can do for him.

II. Cases in which the Principle of Self Defense Applies

A. Defense of Life and LimbB. Defense of PropertyC. Defense of Honor/ReputationD. Defense of ChastityE. Defense of Civil, Political and natural Rights 

III. Factors Affecting the Credibility of the Defenses

A. The claim of self defense, (as well as of relative and stranger) are inherently weak and easily fabricated, and must be corroborated by independent evidenceB. The location, number and nature of the wounds of the victim must be considered and may disprove the claim of self-defenseC. The lack of wounds of the accused may disprove self defense and proof the lack of aggression on the part of the victimD. A refusal to give a statement upon surrendering, or non-assertion thereof, is inconsistent with a claim of self defense. A claim of self-defense, if true, must be asserted promptly.