something I learnt when I was studying criminal law is that in my state, the rule of proportionate response applies to harm caused in self-defence, but not in defence of property.

I'll explain what that means. https://twitter.com/Savion/status/1299521831376953345

say someone is trying to punch you in the face. if you punch them back, that's self-defence. if you beat them over the head with a cricket bat, that's a disproportionate response and you lose the protection of a self-defence argument in court.

now, as my crim law lecturer loved to say, let's change the facts.

say you find someone trying to get in the back window of a friend's house while you're there for an appropriately socially-distanced gathering. you deter them from entry with the same cricket bat from before.

the property isn't your property - it's your friend's. the person trying to get in the back window hasn't punched you in the face, or even touched you at all. you just see them trying to get in the back window and assume they're there to commit a crime, so: cricket bat.

under the queensland criminal code s 267, if you decide that it's reasonable for you to beat this intruder with a cricket bat, that's fine. it's not disproportionate. you were defending property, not yourself, so the proportionate response rule doesn't apply.

here's the section in question. notice that you don't have to believe the person is trying to cause anyone harm, just that they're going to "commit an indictable offence" and you don't even have to *know* that, you just have to *think* it.

turns out the person trying to come in through the window was your friends new roommate, who you hadn't met yet, and they'd forgotten their keys. you thought they were an intruder (I mean, they were entering through the window) and the closest thing to hand was the cricket bat.

if you tried to argue self-defence in a situation like that, you'd lose. but if you were to argue defence of dwelling, well, the grievous bodily harm you just caused to someone you thought was an intruder becomes defensible.

that's because our legal system places a higher value on the protection of property than of persons. and that's not just me saying that: that's something judges have said. (I will go through my crim law notes if someone wants a cite on this, because I know there is one.)

this doesn't mean you can get away with murdering anyone you think is about to steal your stuff, but it does mean you can be a lot more violent in defence of property and still mount a successful legal defence than you can in defence of your person.

if that seems unfair, well, it is. it's also a reflection of why our legal system exists: to protect property interests. you're allowed to use the cricket bat on a home invader and not on someone punching you in the face because the law considers your house more valuable.

US states with "castle" doctrines are a good example of this. I can't speak to the law anywhere else. even within australia, the criminal law system is not uniform, though the underlying common law principles are pretty similar. https://twitter.com/MazHem_/status/1299530949366099969?s=19

the language in s 267 is very interesting. it doesn't require that the force be proportionate, just that you believe on reasonable grounds that it was "necessary." reasonable grounds is generally an objective test, but what's reasonable when you think you're being robbed?

australian courts have found that shooting a would-be intruder is reasonable defence of a dwelling, even though shooting that same person would be unlikely to qualify as self-defence if the altercation happened on the street and no property was involved.

I'm simplifying this a bit because there *are* circumstances in which you can use serious or even lethal force in self-defence (certain kinds of provocation, belief that your life is in danger), but its use is far more narrowly proscribed than in defence of dwelling cases.

the legal system exists to protect property. not just private property, to be fair, public and personal property too, but it's interesting and also quite damning (in my opinion) that the state will allow a much greater degree of violence in defence of property than of persons.

our laws tell us about what our priorities are as a society, and our laws value property over persons.

I just think that's important to know and remember.

good question! here are some relevant sections of the code. defence of chattels personal doesn't give you as much leeway as defence of chattels real (you're not allowed to do grievous bodily harm), but you've still got a bit. https://twitter.com/Frank61pc/status/1299533924125696000?s=19

I should mention that while the section is called "defence of dwelling," elsewhere in the code, a "dwelling" is not just defined as a house. here's the definition from s 1:

property generally is very broadly-defined, and is in fact not exhaustively defined; the s 1 definition gives some examples of what can be defined as property but also includes this:

"things in action" means legal rights you might have, like the right to sue or to collect a settlement from a case. those rights are forms of intangible property with their own protections (for example, there's a whole section in equity law about assigning your right to sue).

criminal law is actually far less my area of expertise than property and land law, but unless someone really wants a lecture on property rights, I'll probably end this here. if you found this interesting, help subsidise my very expensive law degree! http://ko-fi.com/jaythenerdkid