As a woman, especially as a woman with an interest in firearms and concealed carry, you are not very likely to find yourself engaged in a bar room brawl. But as we’ve seen on the news in recent years given the social unrest across the nation (remember Kyle Rittenhouse?), the question of fighting vs. self-defense isn’t as clear-cut as we might assume. Self-defense is a legal term that has a very specific meaning, and just because something makes logical sense to you doesn’t mean it’s legally justifiable.
To be clear, I am not a legal professional—just a girl who’s done some research—and this is not legal advice. But the truth is that self-defense and plain old fighting can look a lot alike. What’s the difference?
Laws vary by state, but in general, in order to successfully claim self-defense as a justification for your exercise of deadly force, you must meet the following criteria:
- The attack upon you was unprovoked
- You faced imminent harm
- You responded with an appropriate degree of force
- You had an objectively reasonable fear of harm
- If your state has a Stand Your Ground law and/or a Castle Doctrine, the definition of self-defense broadens a bit to include defense of your home against any unauthorized person.
Fighting is different, generally based on the premise that it is mutual, whether you feel like it was mutual or not. There are different types of fighting, one of which is mutual combat. Some states have a specific law that says, essentially, that if two parties agree to fight or engage in mutual combat, neither of them will face charges. One state’s code defines it like this: “A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self defense arose.” Mutual combat has limits, though, and if one party tries to stop the fight and the other keeps swinging, the situation changes. If one party seriously escalates the fight (say, by pulling out a weapon), the situation can change from mutual combat to battery or other charges.
“Self-defense is what happens when you are losing,” says author Rory Miller. “Think that through. If I attack you, clearly I’m not defending myself. Simultaneously, if I challenge you to a fight (or you challenge me) that’s not self-defense. That’s mutual combat.”
To tell the difference, we need to examine those four important points of self-defense. First and probably most important to the question of self-defense vs. fighting is the issue of provocation. One law firm states it as, “Self-defense does not happen without first being provoked; in other words, if you hit someone first because they said they were going to hit you, then you would not be acting in self-defense, even if they verbally threatened you first.” There are exceptions to that, but in general, if you respond to words with physical violence, you might be found guilty of assault or battery because there was nothing to defend yourself against. You initiated the physical confrontation—you started a fight. Here’s a clue: If you’re acting out of ego (or revenge), you’re fighting. If you’re responding to a surprise attack and you’re already behind the 8-ball, you’re defending yourself.
It might be up to a jury to decide exactly what “initiated the confrontation” means. If you inserted yourself into a situation that had nothing to do with you, and then things went sideways, are you guilty of starting something and thus not justified to use force under self-defense laws? Maybe. “Who started it?” is not 100 percent the defining line, but it’s close. “‘He started it!’ is a grade-school defense; it isn’t a legal defense,” says Miller. Again, think of the Kyle Rittenhouse case. It was a close call that ultimately went Kyle’s way, but a jury could just as easily have seen it differently.
Imminence matters. A situation can start off as self-defense and devolve into fighting. Say someone attacks you, but you swing back, and soon you’re winning. You and your opponent trade punches until she is on the ground and has ceased her attack. You kick her in the teeth as a final “I win/how dare you/don’t mess with me again” dominance gesture. Guess what? What started as self-defense (she attacked you) turned into fighting when she stopped and you didn’t.
The appropriate degree of force aspect of self-defense is important to understand here, too. Say you’re at a party and some woman you don’t know mistakenly thinks you’re paying her man too much attention. She insults you, calls you a name and then slaps you across the face. You slap her back; you’re basically fighting. If you pull out a gun and shoot her, you can’t claim self-defense—that was a totally disproportionate response, and you’re going to prison. If, however, she called you a name and then swung a knife at you, most people would reasonably say your life is in danger, and deadly force is in play now. You likely have a self-defense case. The level of force you use makes a huge difference.
Even Castle Doctrines, which state that you have the right to use force in protection of your home or other legally occupied place (like your car) against an intruder, have limits. In some states, you can’t claim the Castle Doctrine self-defense justification if the person you acted against had a legal right to be there or had entered the dwelling accidentally or in good faith, and you can’t claim the Castle Doctrine if you were participating in unlawful activity or using the house or car for unlawful activity.
Summing It Up
Fighting vs. self-defense is a thin line in some cases, and although self-defense has clear legal definitions, the decision might ultimately come down to how a jury interprets the law and your actions. A few key points to keep in mind:
- If you’re responding to a surprise attack, you’re probably not fighting.
- If you are doing something you have to do, not something you want to do, you’re probably not fighting.
- If you respond to words with physical violence, you probably are fighting and might lose the ability to claim self-defense.
- If you continue a confrontation after your opponent clearly says or indicates that they want to stop, you’re probably fighting.
- Even Castle Doctrines are not absolute.