In the criminal law

Criminal law

Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

, the duty to retreat is a specific component which sometimes appears in the defense of self-defense

Self-defense (theory)

The right of self-defense is the right for civilians acting on their own behalf to engage in violence for the sake of defending one's own life or the lives of others, including the use of deadly force.- Theory :The...

, and which must be addressed if the defendant

Defendant

A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...

 is to prove that his or her conduct was justified

Excuse

In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...

. In those jurisdictions

Criminal jurisdiction

Criminal jurisdiction is a term used in constitutional law and public law to describe the power of courts to hear a case brought by a state accusing a defendant of the commission of a crime...

 where the requirement exists, the burden of proof is on the defense to show that the defendant was acting reasonably. This is often taken to mean that the defendant had first avoided conflict and secondly, had taken reasonable steps to retreat and so demonstrated an intention not to fight before eventually using force

Use of force

The term use of force describes a right of an individual or authority to settle conflicts or prevent certain actions by applying measures to either: a) dissuade another party from a particular course of action, or b) physically intervene to stop them...

.

American law

Some American jurisdictions require that a person retreat from an attack, and allow the use of deadly force in self defense only when retreat is not possible or when retreat poses a danger to the person under attack. The duty to retreat is not universal, however. For example, police officers are not required to retreat when acting in the line of duty. Similarly, some courts have found no duty to retreat exists when a victim is assaulted in a place where the victim has a right to be, such as within one's own home.. The Model Penal Code

Model Penal Code

The Model Penal Code is a statutory text which was developed by the American Law Institute in 1962. The Chief Reporter on the project was Herbert Wechsler. The current form of the MPC was last updated in 1981. The purpose of the MPC was to stimulate and assist legislatures in making an effort to...

  suggests statutory language that also recognizes an exception to the usual duty to retreat when the victim of the attack is in his or her own dwelling or place of work.

Many states employ "stand your ground" laws that do not require an individual to retreat and allow one to match force for force, deadly force for deadly force. The Washington State Supreme Court, for example, has ruled "that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be."

English law

In English law

English law

English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

 the focus of the test is whether the defendant is acting reasonably in the particular situation. There is no specific requirement that a person must retreat in anticipation of an attack. Although some withdrawal would be useful evidence to prove that the defendant did not want to fight, not every defendant is able to escape. In R v Bird (1985) 1 WLR 816 the defendant was physically attacked, and reacted instinctively and immediately without having the opportunity to retreat. Had there been a delay in the response, the reaction might have appeared more revenge than self-defence. It might be different if the defendant sees an enemy approaching and decides to stand his ground. The answer may depend on where the threat is recognised. In a public place, where there are many other people present, a judgment must be made on whether an attack is imminent. As a matter of policy, no-one should be forced out of the streets because of fear, but prudence might dictate a different answer at night when the streets are empty.

Carrying weapons

As to carrying weapons in anticipation of an attack, Evans v Hughes (1972) 3 A ER 412 held that for a defendant to justify his possession of a metal bar on a public highway, he had to show that there was an imminent particular threat affecting the particular circumstances in which the weapon was carried. Similarly, in Taylor v Mucklow (1973) CLR 750 a building owner was held to be using an unreasonable degree of force in carrying a loaded airgun against a builder who was demolishing a new extension because his bills were unpaid. More dramatically, in AG's Reference (No 2 of 1983) (1984) 1 AER 988 Lane CJ. held that a defendant who manufactured ten petrol bombs to defend his shop during the Toxteth riots could set up the defence of showing that he possessed an explosive substance "for a lawful purpose" if he could establish that he was acting in self-defence to protect himself or his family or property against an imminent and apprehended attack by means which he believed to be no more than reasonably necessary to meet the attack.

Related sayings

• go to the wall
• have one's back to the wall