Home Defence

By AM Sunday, April 18, 2010

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Nobody is talking about killing people, although you would certainly feel like doing it under certain circumstances, but simply having the right to protect yourself, your family, your property, your goods, without having to worry about the so-called ‘rights’ of the criminal … Should we be allowed ‘defend’ ourselves in our own home? Shouldn’t a burglar be responsible for what happens to him when he illegally enters somebody’s property? Would it go some way to making them think twice before they carried out a robbery if they knew they might end up his hospital? - Blogger Twenty Major

Some time back the following headline on a BBC news website caught my eye: ‘Burglars threaten 87-year-old man in Craigavon.’ It did so because even earlier again I had noticed the re-emergence of the Castle Doctrine debate which has been attempting to increase the rights of citizens against those who might seek to break into their homes and assault, rob or rape them. The doctrine, as old as castles themselves, seems to have the origins of its new form in the National Rifle Association of America which has long argued for a reversal of ‘the pendulum that for too long has swung in the direction of protecting the rights of criminals over the rights of their victims.’ The NRA, well to the right of the political spectrum, has managed to have the Castle Doctrine legislated into law in numerous US states.

In Ireland, like elsewhere, there is widespread concern that the law has become so misshapen that it demands of citizenry that home dwellers must ensure that their property is sufficiently safe so that an intruder will not be injured in the event of going about his egregious trade.

The amount of force householders may lawfully use when confronted by a thug in their homes is at some point to be codified in new legislation popularly known as the Home Defence Law. The intellectual, and indeed emotive, founds on which it rests were articulated in 2007 by Michael McDowell who in proposing legislative changes said:

It is my contention that an attack in the home has unique characteristics given the emotive nature of an encounter between the occupant and an unwelcome intruder … I believe the law should have regard to the unique circumstances which prevail in a situation where an intruder is being dealt with in one's own home, the place we all have a right to consider to be a place of safety.

Agree with McDowell more generally or not, it is hard to dispute his particular point that people attach significance to their homes that may be alloyed in respect of other matters. Fear of being attacked in the last citadel of privacy and psychological security is always going to increase the likelihood of a violent defence being mounted. Now we find growing numbers seeking to mount a legal defence of that violent defence.

Passions are all too easily inflated and inflamed, on the matter. Observing animated discussion it would seem that in respect of their homes, many householders view them as a woman would her body – the intruder is reviled a la the rapist, meriting whatever the aggrieved householder doles out.

The debate around the issues the proposed new law is meant to address has intensified since the Padraig Nally case. Nally was eventually acquitted of the unlawful killing of John Frog Ward, an incorrigible criminal, who appeared intent on robbing Nally, but who at the time of his death was trying to escape from Nally’s property.

In the case of the Ward death it is difficult to work out what act of defence was being furthered other than defending the right to kill Ward before he escaped and made his way on to the next house so that he could try his hand at robbing that. Hardly a crime that merits the sanction of death. Nally, in the words of Vincent Browne, had ‘brutally beaten an intruder and then followed him up a laneway and shot him dead while his victim was crouched down in a defensive position underneath him.’ At the time, there seemed little public sympathy for Ward. His extensive criminal background and his history of preying on the vulnerable meant that the well of sympathy was long since dry by the time he came to rob it.

It is hard to see Nally ever having been hauled before the courts had he killed Ward face on. But because Ward was shot from behind when he was in no position to defend himself or behave aggressively toward his attacker the case had to be tried. There are many of us who would frown on the suggestion that a fleeing unarmed man poses an immediate threat to the life of the person from whom he is fleeing and on whom his back is turned. In that respect, Nally won more in terms of leniency than he was due. This has helped cloud the issue.

At the time of the discussion a few months back I noticed some discord between two groups I would normally find myself on the same side as. Not being a politician I can’t now be on the same said as both when each is on opposite side to the other. The Irish Council for Civil Liberties attacked the Home Defence proposals while the Dublin Rape Crisis Centre has welcomed them.

Ellen O’Malley Dunlop of the Rape Crisis Centre said the new legislation would give women confronted by a rapist in their home ‘the right to protect themselves without the worry of being prosecuted.’ In sharp contrast Mark Kelly of the ICCL argued that ‘as the state itself does not impose capital punishment for burglars it certainly cannot issue householders with a licence to carry out extra-judicial executions of burglars.

The ICCL logic on this matter is skewed. As the state does not impose the death penalty for rape, the terminus of Kelly’s argument, if his logic route is followed, is that a woman must submit to rape rather than kill her attacker. This seems absurd because implicit in it is the suggestion that woman’s right not to be raped is weaker than the rapist’s right not to be killed by his victim in the commissioning of his act. If a woman needs to kill her attacker as the only means to prevent her being raped it is hard to muster any argument other than a formal one against it. For those who advise the attacked woman to lie back and think of Ireland, they shall be remembered in the attacker’s thanksgiving prayers.

If we accept this then there exists a firm discontinuity between killing as execution and killing intruders during the act of intrusion. It also invites the question: short of intent to murder is it only rape a person should use lethal force against to either prevent or terminate during its commissioning?

The courtroom is the stage at which the legal niceties of what a person’s intent may be when resisting an intruder is fine tuned, leaving the jury the power to determine culpability and the judiciary the discretion to impose a sentence to fit. But to say that the legal finery of courtroom procedure should apply in the family home when the occupant is confronted by an intruder with no right to be there and whose only intent is malign, is to stretch the argument too far. Mark Kelly with eminently good but flawed intent, ends up not protecting civil liberties but criminal liberties.

No one should be executed regardless of their crime. But defending one’s home and all who live in it against intruders is hardly on a par with deliberate, pre-planned execution by the state. A more salient concern should be whether ‘having ago’ is likely to produce the scare effect which would cause the aggressor to flee the scene. Some US surveys have shown that more injuries and fatalities are sustained by home occupants who attack the intruder.

If correct such arguments offer a salutary lesson which should be considered before embarking on a course that may produce an effect opposite to what it is intended to achieve. It real strength however lies in its focus on protecting the aggrieved rather than the aggressor.