Self-defense statutes in Oklahoma and New York


The following account is an example of how tough on aggressors “stand your ground rules” can be:

A young man from a residential area of Tulsa, Oklahoma recently shot and killed three armed burglars found on his property. One assailant had even abandoned the enterprise and was running towards the getaway car when the young man caught up with him and shot dead the burglar before he could get in the car and speed away. The young man was not charged with homicide but considered to have legitimately acted in self-defense of his home and property.

Such a thing would never fly in Italy.

The perpetrators however were four, including a woman getaway driver who fled the scene but later voluntarily turned herself in to Tulsa police.

In Italy she probably would have been charged only with the “lesser crimes” (she had all along intended to commit) and not with the attempted murder of the young man or burglary, of which she had no part, let alone with the murder of her accomplices. But the young woman chose to participate in an armed burglary in Oklahoma, one of the tough “stand your ground states” that ended with the death of three people (her accomplices in crime shot dead by the intended victim) and Tulsa police immediately charged her with three counts of voluntary homicide and burglary because the law in Oklahoma is clear on the point: all conspirators are liable for murder if anyone, including another conspirator, dies during the armed robbery.

No can do in Italy people because here the rules of self-defense are heavily slanted not against but in favor of aggressors. Theories of “in dubio pro reo” and concepts such as personal liability for crimes (which in Italy is strictly construed) in practice work against the victims of an aggression even when attacked in their homes or place of business.

Another reason: conspiracy doctrine is a common law concept alien to the civil law, when more than one person is involved in the perpetration of a crime, criminal lawyers here speak of “concorso di persone nel reato”, the rules of which are better for would-be delinquents.  Why?  Well, because under civil law rules, each partner in crime assumes liability only for the specific crime he committed. In complex crimes that include lesser ones such as in the case of an “armed robbery”, such crimes are sanctioned more but not as much as they would be if you could add up the sanctions for each single offense (or “count”) as customary in Anglo-American systems.

Yet another reason is Art. 116 of the Italian criminal code, which defines and regulates, “Il reato diverso da quello voluto”, meaning the “different” crime than what intended, allowing someone like the getaway driver to claim as defense that she wanted no part in anything more than just driving the getaway car, which is what she had signed up to do. The above explain, in part at least, why Italian jails come with revolving doors.

No “cumulo materiale delle pene” in Italy, explains why you can never be sentenced here to hundreds of years in jail, let alone consecutive life terms for multiple homicides, not even if you were to break every law in the criminal code during a single armed robbery. And because in Italy principles of economy of trial and fairness are such as to make sure criminals are sentenced only to such time in jail as provided for by the most serious of the offenses committed less any benefits such as extenuating circumstances or more in the case of aggravating circumstances.

Ever since Beccaria pulled the plug on the death penalty, the objectives of the Italian criminal justice system is not so much to punish criminal offenders as it is to recuperate them to society through re-education. In Italian criminal law, retribution / repaying society for their actions does not enter into the picture. The concept that criminals have a debt to pay society has little or no place in civil law jurisdictions as it does in common law jurisdictions. Sounds good right? Well you tell me.

In the Italian system, victims judged to have exceeded in their reaction to an unjust aggression by killing their assailant(s) are denied “justification” for their action(s), severely sanctioned and often sentenced to indemnify the heirs of the deceased felon. Bellissimo!

Self-defense a comparison of New York State and Italian self-defense rules