NCJ Number
117161
Journal
Kentucky Law Journal Volume: 76 Issue: 1 Dated: (1987-88) Pages: 167-199
Date Published
1988
Length
33 pages
Annotation
This article reviews Kentucky's current statute regarding homicide in self-defense and proposes a revision that would address an unreasonable perception of risk of harm as the basis for a self-defense homicide.
Abstract
The only provision in Kentucky's Code that gives an accused a basis for claiming self-defense is Kentucky Revised Statutes section 503.050. The defense defined by this statute is absolute, entitling an accused to exoneration on the sole basis of a subjective belief in the need for self-protection. Section 503.120(1) purports to qualify this absolute defense by declaring the defense unavailable when the defendant's subjective belief is wantonly or recklessly mistaken. According to the Kentucky Supreme Court, however, the Kentucky General Assembly did not define the lesser degrees of homicide (those committed through wantonness or recklessness) to include killings with a wanton or a reckless belief in the need for self-protection, thereby leaving the qualifying section unimplemented and the absolute defense fully intact. The law should be revised to indicate that a killing under a belief in the need for self-protection would be manslaughter in the second degree upon a showing that the defendant acted in the face of a substantial and unjustifiable risk of mistaken belief in the need for self-protection; that the defendant was aware of and consciously disregarded the risk that he was mistaken in his belief; and in acting, he grossly deviated from the standard of conduct that a reasonable person would have observed in the same situation. Reckless homicide would be the offense upon a showing that the previous conditions existed, with the exception that before acting, the defendant failed to perceive the risk that he was mistaken in his belief regarding the need for self-protection. 109 footnotes.