Written by attorney Brenton Daniel Vincenzes

3 “Justification” Defenses: Explained by a Virginia Criminal Defense Attorney

3 “Justification" Defenses: Explained by a Virginia Criminal Defense Attorney

"Justifications" are sometimes differentiated from "excuses" in that they are often commendable, even though the act brings about harm. The justice system views justification defenses as important to society based upon the social value of the act (and the value in allowing members of society to be able to take such actions). There are, however, limitations to justification-defenses. The justification-type defenses covered in this guide:

  • Self Defense
  • Resisting Unlawful Arrest
  • Parental Discipline

Self Defense: Self-defense is called an “affirmative defense." In essence, the defendant is admitting to the criminal conduct, but saying he or she was justified in taking some or all of the action(s) alleged. When it comes to self-defense, any force used must be limited to only what is necessary to avoid or defend against the threat.

The threat does not necessarily have to be real. The law looks at whether a “reasonable person in the defendant’s position" would identify something as a threat. For example, a realistic but fake gun could very well lead a reasonable person (absent knowledge of the gun being fake), to believe it to be a real threat.

If your assault and battery case is based upon facts in Northern Virginia and you are required to appear in a court in Northern Virginia, talk to our local Fairfax criminal lawyer. He will explain whether or not any defense(s) may exist after he analyzes the facts of your case. If self-defense is a viable option, then you will need to work with your lawyer to offer evidence in court to raise a reasonable doubt about your guilt. In Virginia, whether or not the facts surrounding your case are adequate is a question of fact for the judge or jury. 1

Self-defense would not be a good defense to an assault and battery charge if too much force was used. Also, you must have reasonably been in fear of serious bodily harm. If you are charged with assault and battery but your action(s) resulted from being in fear for your life, or if you thought you would be seriously harmed unless you took a defensive action, then self-defense may be an affirmative defense that your lawyer can explain in more detail.

Resisting Unlawful Arrest: In Virginia, you have a right to resist an unlawful arrest made with unlawful force. 2 Therefore, it is possible for an assault and battery charge resulting from a resistance to an unlawful arrest to be defended based upon this right. If your case involves an unlawful arrest, be sure to let your lawyer know when you meet to discuss your case.

Parental Discipline: Parents have been disciplining children since the beginning of mankind. But this does not mean limits do not exist. It is not an assault and battery if a parent punishes a child with moderation, but it must be for the welfare of the child. Exceeding due moderation can lead to a criminal charge. 3

Note: Non-Parents Disciplining a Child: Here is a good question: if a non-parent disciplines a child, does he or she have the same legal protection as the parent (assuming due moderation is used, and it is for the welfare of the child)? If the person is standing “in loco parentis," then the answer is yes. The term, “in loco parentis" is Latin for, “in the place of a parent," and refers to the legal responsibility of a person or organization.

Additional resources provided by the author

[1] Smith v. Commonwealth, 17 Va. App. 68, 435 S.E.2d 414 (1993) [2] Foote v. Commonwealth, 11 Va. App. 61, 66, 396 S.E.2d 851, 856 (1990). [3] Carpenter v. Commonwealth, 186 Va. 851, 44 S.E.2d 419 (1947).

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