Self Defense and Restorative Justice

I am teaching Criminal Law this semester and have struggled with how to move beyond the standard casebook vision that every criminal case goes to a jury trial and then has some fascinating appellate issue to review.  Under this standard approach, it is tough to structure classroom discussions around the realities of criminal practice, such as the fact that well over 90% of all criminal cases settle through some sort of plea bargain.   It is even tougher to naturally work other alternative processes into the classroom discussion.  Last week, when we were discussing self-defense, I used an example that allowed for some of that discussion, with the help of a few videos. 

Many of you have probably seen a recent video out of Australia that went viral as an example of one boy fighting back against a bully.  The link is: bullying.  I showed this very short video in class and then we discussed whether the boy who is seen to be “fighting back” could assert self defense under the Texas Penal Code.  Predictably, given the perspective from the video, the whole class assumed that the younger child was the aggressor and that the other was the victim who was fighting back to protect himself, and acting within the law. 

Then I showed a longer segment from a news program in Australia which included interviews with both children (and the alleged bully’s parents).  The news program did a nice job of making it clear that the situation is not so clear.  The younger boy claims that the older (and bigger) boy started the fight both with words and with a shove, and that he was simply fighting back.  The younger boy also said that he “snapped” because of years of suffering bullying himself. This second segment led to a nice discussion about who was the aggressor (which is important in the context of asserting self defense) and proportional response.  The link to the second segment is: News Program

However, my favorite part of the discussion was when I asked the students:  What would you do if you were the prosecutor?  Would you file charges against one or the other child?  Would it make sense to do something else?  The second segment shows the younger boy responding to the news that the older boy has also been a victim of bullying for years and the younger boy starts to see the older boy in a different light:  as someone he might have something in common with, not simply a single dimensional villain.  This little piece sparked a nice discussion about restorative justice and why this might be an ideal case for such a process. 

Unfortunately, I also had to pull the class back to the reality of what would likely happen had this case been in Texas (or most parts of the United States).  Both boys would likely have been suspended under “zero tolerance” for fighting policies (as happened to them in Australia).  And, at least one of the boys would likely be charged with a crime, maybe a felony. Depending on their ages, they might have been charged as adults.  Texas, as many states around the country, has an unfortunate record of increasingly criminalizing fights at school. A generation ago these same kinds of situations were routinely handled as administrative matters by the school without getting the criminal justice system involved.  There is also a well documented tendency to use disciplinary referrals in ways that disproportionately impact African American and Latino students and that seem to result in much higher drop-out rates, particularly in those communities.  For a recent study on this issue in Texas, seeSchool to Prison Pipeline

I think the discussion helped to illustrate how to do a self-defense analysis and helped sparked some thinking about prosecutorial discretion, prosecutorial decision making, and restorative justice.

One thought on “Self Defense and Restorative Justice”

  1. Ahh I remember this video from criminal law. After taking your ADR class it seems as if some mediation type process could be put in place for physical altercations that occur in public schools. Coming from a high school in Houston, there were always fights, it was a common occurrence! Depending on the severity, the kids would be prosecuted, or sent to an alternative school (“annex”). And, as most anyone would guess, these options aren’t going to help with the kids self-esteem and future.

    I’m sure it wouldn’t be too difficult for public schools to put in place a procedure for situations such as this. Fights within any school system almost seems inevitable, especially when a school exceeds 1,000 students. Maybe we could have these kids discuss their problems in a controlled setting with a third party neutral. This would give the students the opportunity to make amends and avoid any type of punishment that would limit their future.

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