On the 19th of November, a Wisconsin Kenosha Country Courthouse jury found Kyle Rittenhouse not guilty on charges related to his shooting of two people and injuring one other during the Black Lives Matter (BLM) protests in Kenosha, USA, last year.
Rittenhouse was on trial for shooting and killing Joseph Rosenbaum, 36, and Anthony Huber, 26, and wounding Gaige Grosskreutz, 27. He pleaded not guilty and essentially claimed self-defence.
Sounds simple enough? Well actually no…
Kyle Rittenhouse arrived in the state of Wisconsin, on the third night of the Kenosha BLM protests, which were sparked by police officer Rusten Sheskey shooting and seriously injuring Jacob Blake, an African American man. Rittenhouse says that he felt compelled to leave his home state of Illinois to help protect property, put out fires and offer medical aid to anyone hurt in the protests. Strapped up with a rifle, he roamed the streets of Kenosha offering whatever “help” he could. There were even reports of police officers thanking him and the group he was with at the time for helping them control the protests – despite violating state wide curfew orders in place at the time, further driving the controversy.
Given the circumstances of the case, it naturally became a political test-case on the veracity of the US legal system and its law enforcement. The case took on quite a following for those passionate about issues such as gun laws, public protesting, self-defence laws and the most significant of them all – racism.
What transpired was divisive, with two clear sides to this political coin:
For some, Rittenhouse quickly became the poster boy for freedom, a patriot and a model American. Others believe he was aligned with racist groups and that his behaviour was irresponsible or even ill-intentioned.
Regardless of the split in politics, the question at trial was not whether Rittenhouse should have been at the protests, or what his motives were for breaching health orders to attend, but rather if it was reasonable for him to fire his gun killing 2 people and injuring another in the name of self-defence.
As such, that is what we are here to address in this article: (at least in an Australian context).
In Australia, self-defence is covered under Section 418 of the Crimes Act 1900 (NSW) outlines when self-defence is available and what is required by the accused. It states:
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary–
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.
The onus of proof of self-defence lays of course with the defendant on the ‘balance of probabilities and they must prove that it is more likely than not that the person was acting in self-defence. Once that is successfully raised though, the burden of proving it was not in fact self-defence, or was a disproportionate response to the threat faced, turns to the prosecution. It’s difficult to be definitive on when a self-defence applies to case as there are multiple variables at play in these types of matters.
Self-defence will generally NOT apply when the accused applies physical force that results in death, either intentionally or recklessly, and when the conduct was done to protect property.
This suggests that Kyle Rittenhouse may have had a tough time getting off the hook for his actions here in Australia.
If you or someone you know needs help with a self-defence claim don’t hesitate to contact our office.