Forfeiting the Right to Self-Defense

Do provocateurs or aggressors lose their rights to use force in self-defense? Professor Kimberly Ferzan from the University of Pennsylvania School of Law explains the complexities and nuances inherent in self-defense law, and breaks down the intricate dynamics between aggression, provocation, and self-defense rights.

Generally, a person who initiates an attack cannot claim self-defense if the other party responds with force to protect themselves. Ferzan explains, "If I go to punch you, and you go to stop me, then I'm the bad guy, you're the good guy. I can't then say, 'Wait, I'm the one being threatened with unlawful force'. My force was unlawful." However, the law acknowledges some exceptions to this rule. If the initial aggressor communicates their intention to retreat and no longer poses a threat, in some states they can regain their defensive rights. Additionally, if the initial aggressor threatens non-deadly force and the other party escalates the situation to deadly force, the initial aggressor may also regain their defensive rights depending on jurisdiction.

An often misunderstood aspect of self-defense law is the role of provocation. Ferzan sheds light on this issue, explaining that one can provoke violence without necessarily throwing the first punch. "If I go into a bar and I call your mother a bunch of names and continually insult you, then I have, in some ways, picked the fight," Ferzan states. In such scenarios, even though the provocateur is not threatening with physical force, they may lose their right to defend themselves due to their instigating behavior. But what counts as being a provocateur? This question often proves tricky for the courts, as it can be challenging to distinguish between initial aggressors and provocateurs. In some cases, words alone can be seen as provocation, while in others, they may not be sufficient. Prof. Ferzan provides insight into the nuances involved when invoking self-defense as an affirmative legal defense.