Acting in Anger or Purely to Defend? Japan's Stance on "Intent to Defend" in Self-Defense Cases

Self-defense, recognized under Article 36 of Japan's Penal Code as 正当防衛 (seitō bōei), stands as a cornerstone justification for acts that would otherwise be criminal. For this defense to prevail, several conditions must be met, including the presence of an "imminent and unjust infringement." Beyond these objective criteria, Japanese law also scrutinizes the subjective state of mind of the person claiming self-defense, requiring what is known as the "intent to defend" (防衛の意思 - bōei no ishi). This means the defender's actions must have been primarily motivated by the will to protect themselves or another from harm.

However, human reactions in moments of crisis are rarely clinical. Confrontations often involve a maelstrom of emotions – fear, anger, indignation, and perhaps even a concurrent desire to fight back. How does Japanese law navigate these complex psychological states? Can an act performed in anger still qualify as self-defense? This article explores the nuances of the "intent to defend" requirement in Japan, particularly through the lens of a pivotal Supreme Court decision that addressed this very issue.

The "Intent to Defend": A Subjective Pillar of Self-Defense

The "intent to defend" is a crucial subjective element that distinguishes a legitimate act of self-protection from an act of aggression, retaliation, or participation in mutual combat. Without this defensive will, even an act performed in response to an attack might not be legally justified as self-defense.

Defining the Defensive Will

At its core, the "intent to defend" means that the defender's primary purpose in using force was to avert the imminent and unjust infringement upon their rights or the rights of another. It's not merely about the act of defending but the will or volition behind that act.

A common misconception is that any accompanying emotion other than pure fear or a detached desire for self-preservation might negate this defensive intent. However, Japanese courts, particularly the Supreme Court, have recognized that self-defense scenarios are inherently stressful and can evoke strong emotions. The presence of anger, indignation, fear, or even a degree of willingness to engage the aggressor does not automatically vitiate the "intent to defend," provided that the primary and overriding motivation remains the protection of a legally recognized right.

The "Predominant Intent" Standard

Courts in Japan often engage in a nuanced assessment to determine the "predominant intent" of the actor. This involves looking at the totality of the circumstances to ascertain whether the will to defend was the principal driving force behind the actions taken, even if other emotions or intentions were concurrently present. If the intent to defend is found to be secondary to, for example, a pre-existing desire to harm the attacker or an intent to engage in a mutual fight for reasons unrelated to immediate protection, the self-defense claim is likely to fail.

The Bar Altercation: Supreme Court Decision, September 12, 1985

A landmark case that extensively dealt with the "intent to defend" amidst a backdrop of anger and escalating conflict is the Supreme Court of Japan's decision on September 12, 1985 (Saikō Saibansho Hanketsu, Shōwa 60-nen 9-gatsu 12-nichi, Keishū 39-kan 6-gō 275-ページ).

Factual Background

The defendant operated a snack bar and harbored suspicions that his wife ("A") was involved in an affair with another man ("B"). The sequence of events unfolded as follows:

1. Initial Provocation by Defendant: B visited the defendant's snack bar. The defendant's suspicions intensified due to B's overly familiar interactions with A, who arrived later. Enraged, the defendant confronted A, shouting and threatening her with an empty whiskey bottle.
2. First Assault by B: B intervened, disarmed the defendant of the bottle, and then physically assaulted the defendant, pushing him and repeatedly punching him in the head and face and choking him. The defendant was reportedly passive during this initial assault.
3. A Lull and Renewed Tension: B returned to his seat. The defendant, after preparing drinks, muttered a complaint to the effect of, "Why do I have to be hit like that?"
4. Second Assault by B: Angered by the defendant's remark, B retaliated by throwing a glass, an ashtray, and other small items at the defendant, who was behind the counter.
5. Defendant Arms Himself: The defendant, feeling extremely provoked and aggrieved by B's repeated assaults and the perceived injustice of the situation (compounded by his belief about the affair), retrieved a kitchen knife (bunka-bōchō) from the kitchen area. He then said to B, "Come outside," and began moving towards the bar's exit.
6. Third Assault by B and Fatal Stabbing: As the defendant moved towards the door, B threw a metal music stand at him and shouted, "Are you trying to run away? If you have a complaint, say it to my face!" B then pursued the defendant and grabbed his shoulder from behind. At this point, the defendant turned and stabbed B once in the chest, an injury that proved fatal.

Lower Court Decisions

The first instance court found the defendant guilty of excessive self-defense (過剰防衛 - kajō bōei), implying that while the elements of self-defense (including a defensive intent) were present, the force used (the stabbing) was disproportionate to the threat.

However, the High Court took a different view. It overturned the first instance ruling, denying the applicability of self-defense altogether. The High Court concluded that the defendant had acted primarily out of accumulated anger and a desire to launch a counter-attack (or even a preemptive attack, suggested by the phrase 機先を制して攻撃しようという気持ち - kisen o seishite kōgeki shiyō toiu kimochi, meaning an intent to attack by taking the initiative). In the High Court's view, the "intent to defend" was lacking.

The Supreme Court's Reasoning on "Intent to Defend"

The Supreme Court reversed the High Court's decision, finding that its conclusion regarding the absence of defensive intent was not adequately supported. The Supreme Court's reasoning was pivotal:

1. Coexistence of Emotions and Defensive Intent: The Court explicitly articulated a principle that has become central to the understanding of bōei no ishi: "As long as the act is recognized as being for the purpose of defending one's own or another's rights against an imminent and unjust infringement, the fact that the actor simultaneously harbors feelings of hatred, anger, or an aggressive intent (攻撃的な意思 - kōgekiteki na ishi) does not, by itself, prevent the act from being considered an act for the purpose of defense." This was a clear statement that a purely "defensive" mindset, devoid of any aggressive emotion, is not required.
2. Assessing the Defendant's Predominant Intent: The Supreme Court then scrutinized the facts to determine if the defendant's actions were primarily defensive in the face of B's third assault (grabbing his shoulder from behind).
   • The "Third Assault" as an Imminent Threat: B's act of pursuing and physically accosting the defendant as he was moving away (even if towards the exit with a knife) was seen as a fresh, imminent threat.
   • The Ambiguity of "Come Outside": The defendant's statement, "Come outside," while holding a knife, was acknowledged as potentially indicative of aggressive intent. However, the Court found this utterance alone was insufficient to conclude that his subsequent stabbing was exclusively driven by aggression. Several factors tempered this interpretation:
     • B might not have clearly heard or understood the defendant's words, as B himself shouted, "Are you trying to run away?" suggesting B perceived the defendant as fleeing.
     • The defendant, despite having the knife, did not immediately attack B when B started throwing items (the second assault) or even when B threw the music stand. He only used the knife when B physically grabbed him from behind.
   • Defendant's Conduct Post-Arming and Post-Stabbing: The Court considered the defendant's actions after he armed himself (moving towards the exit rather than immediately confronting B) and after the stabbing (stabbing B only once and then immediately fleeing the premises). These actions were not necessarily consistent with someone whose sole or primary intent was unbridled aggression. They could also be interpreted as consistent with a defensive reaction to B's final attack, followed by an escape.
3. Conclusion on Intent by the Supreme Court: The Supreme Court found that the High Court had erred in concluding that the defendant acted solely or exclusively out of aggressive intent. The circumstances, when viewed holistically, suggested that a defensive intent—to protect himself from B's ongoing and escalating physical assault—was, or at least could have been, the primary or predominant motivation, even if intertwined with anger and a desire to fight back against his tormentor. Consequently, the Supreme Court remanded the case for further proceedings. (As noted in legal commentaries, the remanded High Court subsequently found the defendant guilty of excessive self-defense, also taking into account potential diminished capacity due to head injuries the defendant sustained from B's earlier assaults).

Significance of the 1985 Supreme Court Case

This 1985 decision has had a lasting impact on the interpretation of "intent to defend" in Japanese self-defense law:

• Rejection of a "Pure Intent" Requirement: It decisively rejected the notion that self-defense requires a purely defensive mindset, devoid of any anger, fear, or aggressive impulses.
• Emphasis on Predominant Intent: It established that courts must undertake a comprehensive examination of all circumstances to ascertain the actor's primary or predominant will at the time of the defensive act.
• Holistic Factual Assessment: The decision underscores the importance of a holistic assessment, considering not just isolated statements or actions, but the entire sequence of events, the conduct of all parties, and the context of the confrontation. A single aggressive utterance does not automatically negate defensive intent if other factors point towards a primary will to protect.

Evidentiary Considerations and Judicial Assessment of Defensive Intent

Given that the "intent to defend" is a subjective mental state, its existence must be inferred from objective, external evidence. Japanese courts typically consider a range of factors:

• The Defender's Conduct:
  • Actions Before the Confrontation: Did the defender seek out the confrontation, or did they try to avoid it?
  • Actions During the Confrontation: Did they attempt to de-escalate the situation? Did they issue warnings? Was their use of force reactive to an immediate threat, or did it appear to be an unprovoked or disproportionate aggression? Did they cease using force once the immediate threat subsided?
  • Actions After the Confrontation: Did they flee, seek help, or attempt to conceal their actions? While fleeing can be ambiguous, immediate reporting or aid to the injured party (if applicable) might suggest a lack of purely malicious intent.
• The Defender's Statements: Any contemporaneous statements made during the incident, or later explanations provided to authorities or in court, are considered. However, self-serving statements made after the fact are naturally treated with caution and weighed against objective evidence.
• Nature and Severity of the Threat: The more serious and immediate the threat posed by the aggressor, the more likely it is that the defender's response will be perceived as primarily defensive.
• Proportionality of Force Used: While proportionality (相当性 - sōtōsei) is a separate legal requirement for self-defense, the use of grossly disproportionate force might also be circumstantial evidence casting doubt on whether the intent was purely defensive. If the force used seems far in excess of what was needed for protection, it might suggest an underlying aggressive or retaliatory intent.
• Prior Relationship and Context: Any pre-existing relationship, history of conflict, or ongoing dispute between the parties can shed light on potential motives and intentions.

Distinguishing Self-Defense from Mutual Combat (喧嘩防衛 - Kenka Bōei)

A critical distinction courts often make is between genuine self-defense and mutual combat (often termed kenka bōei, literally "brawl defense," though this term usually refers to a situation where self-defense is denied due to mutual willingness to fight). If a situation is characterized as one where both parties willingly and unlawfully engage in a physical fight, the "intent to defend" can be negated for both, or at least for the party who is not merely responding to a clear and unjust escalation by the other. Courts are generally reluctant to grant the full justification of self-defense in scenarios that appear to be mutual brawls unless one party demonstrably attempts to withdraw from the conflict and is then unjustly pursued and attacked. The 1985 Supreme Court case touched upon this, as the defendant had made a move towards the exit (which could be interpreted as an attempt to disengage or reposition) before B physically renewed the assault by grabbing him.

When is "Intent to Defend" Typically Negated?

The "intent to defend" will generally be found lacking, and the self-defense claim will fail, in situations such as:

• Solely or Primarily Aggressive Intent: If the evidence demonstrates that the defender's actions were performed exclusively or predominantly for reasons of aggression, pre-existing malice, revenge, or to take advantage of an opportunity to inflict harm, rather than for protection.
• Pretextual Self-Defense: If an individual deliberately provokes an attack or engineers a confrontation merely to create a pretext for using force against another person. In such cases, any claimed "defensive" intent is not genuine.
• Retaliation: If force is used after the threat has clearly ceased, it is considered retaliation, not self-defense, as the protective purpose is absent.

Conclusion

The "intent to defend" (bōei no ishi) is a vital subjective element in the Japanese law of self-defense. It requires that the defender's actions be primarily motivated by the will to protect themselves or others from an imminent and unjust infringement. The Supreme Court of Japan, notably in its 1985 decision concerning the bar altercation, has clarified that the mere presence of strong emotions such as anger, fear, or even some aggressive feelings does not automatically negate this defensive intent.

Instead, Japanese courts undertake a comprehensive, fact-specific inquiry into the totality of the circumstances. This includes the defender's conduct before, during, and after the incident, their statements, the nature of the threat they faced, and the overall context of the confrontation. The ultimate question is whether, despite any accompanying emotions or secondary intentions, the primary and overriding purpose of the defender's use of force was genuinely protective. This nuanced approach acknowledges the complex realities of self-defense situations while ensuring that the justification is reserved for acts truly aimed at averting unlawful harm.