Self-Defense and Endangering an Injured Victim (Part 3)

by | Jul 11, 2021 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

In a rare Appellate Division concurring opinion, Presiding Judge Sabatino wrote in relevant part: I join in Judge Gooden Brown’s scholarly opinion and its application of N.J.S.A. 2C:12-1.2(a) (third-degree endangering an injured victim) to the specific facts of this case. I write to punctuate some concerns about that statute’s imposition of a duty to render aid, when applied in certain domestic violence or sexual assault scenarios, or other situations where well-established countervailing legal concepts may rightly come into play.

More specifically, I wish to underscore our unanimous recognition that concepts of self-defense, necessity, or other principles of legal justification may appropriately pertain in some factual settings to relieve a crime victim, who has repelled and injured an attacker, of criminal liability under N.J.S.A. 2C:12-1.2(a) for failing to render aid to that wounded attacker. A few illustrations might be instructive. Consider, for instance, a situation in which A and B are together on the first floor of A’s home. Without provocation, A begins to punch B repeatedly. B tries to resist A, but A continues to pummel B. B manages to pull away momentarily and shoves A. A falls backwards down a flight of stairs, with A’s head striking the basement floor below. Dazed and bleeding, A appears to B from the top of the stairs to be at least temporarily subdued. Worried that A might recover and resume the attack, B does not run down to the basement to check on A’s vitals and instead flees immediately from the premises. Fearful that A might recover and retaliate against B for calling the police, B does not call for emergency aid.

Under a literal reading of N.J.S.A. 2C:12-1.2(a), B could be charged with the crime of third-degree endangering if B reasonably believed, after pushing A down the stairs, that A was “physically helpless, mentally incapacitated or otherwise unable to care for himself or herself]” Such a prosecution would run counter to principles of self-defense and a would-be victim’s associated obligation to engage in a “safe retreat” instead of using or resuming the use of lethal force to repel an attacker. See N.J.S.A. 2C:3-4(b)(2)(b); Restatement (Second) of Torts, § 65 (1965). In addition, B’s decision to not call 9-1-1 and thereby risk being harmed by A at a later time in retaliation might arguably be consistent with the public policies underlying the protection and safety of victims of domestic violence. See generally N.J.S.A. 2C:25-18 (expressing legislative findings to protect the safety and welfare of domestic violence victims); State v. Kelly (1984) (discussing the application of self-defense principles to battered victims of domestic violence).

Judge Sabatino’s illustration reads like a law school exam problem. The citation to the Restatement of Torts is part of a common law school exam answer.