Right: Senator David Leyonhjelm: legalise the carrying of non-lethal means of self defence.
 Found a word you're not familiar with? Double-click that word to bring up a dictionary reference to it. The dictionary page includes an audio sound file with which to actually hear the word said. |
Arguments against making pepper spray and tasers legally available within the broader community
1. Victims of assault may not be able to access or use these weapons effectively
Critics of the use of non-lethal self-defence devices argue that they often do not supply the protection their manufacturers claim.
Leah Severson, writing for Bulletproof Self-Defence on May 20, 2016, argued, 'Most pepper spray canisters have a safety lock mechanism attached. This prevents you from accidentally discharging it. But if you do not occasionally practice unlocking the canister quickly, you will have a hard time unlocking it and spraying it in a true panic situation.' Relatedly, Severson claimed, 'Unless it's attached to your key chain, most people will never carry their pepper spray in their hand when they're walking alone. They're more likely to leave it in their purse, and it would be almost impossible to find it, unlock the safety mechanism, and deploy it fast enough to stop an assailant.'
Severson also argued that contrary to claims often made about pepper spray, it requires some skill to use effectively. She wrote, 'Many pepper sprays spray in a stream as opposed to a cloud. That means your aim must be dead-on in order for the spray to be effective. The stream must hit the attacker in the eyes to be effective. If your attacker is wearing glasses, this gives him an added level of protection against your pepper spray.'
Severson also listed a number of other factors that can render pepper spray ineffective. These included, ' If you spray pepper spray outdoors and the wind is blowing the wrong direction, you could end up with a face full of spray while your attacker gets none... If you leave your canister in a hot car, the canister can leak, making it useless. It can also explode if left in a hot car... If you leave your canister in a cold car, it can become depressurized and lose the ability to spray far enough to reach your attacker until he's right in front of you.'
Similar criticisms have been made about the effectiveness of Mace and tasers. Mace is generally regarded as less effective than pepper spray as it takes longer to act and may have less impact on those who are drug-affected or mentally disturbed.
It has also been claimed that less powerful versions of Taser guns may not have the desired effect upon larger and stronger opponents that can fight through the electric charge.
2. Police generally recommend preventative, cautious responses in the event of potential assault
Studies treating the effect of victim resistance to sexual assault are complex. One major complicating factor is the difficulty of determining cause and effect. Research has indicated that greater violence is associated with attacks where the victim resists; however, it has also been suggested that victim resistance is a response to the violence suffered, not the cause of that violence. A 1992 study by Sarah Ullman and Raymond Knight published in the Journal of Interpersonal Violence found that '85% of the women in the study who resisted with physical force did so in response to the offender's initiated violence. The remaining 15% who resisted with physical force did so in response to the offender's verbal aggression.' The study concluded 'the frequently found correlation between physical resistance and injury of the woman might be the result of the initial level of the offender's violence'.
That said, law enforcement authorities are generally reluctant to encourage potential victims to use violence in self-defence for fear that the violence directed against the victim may escalate. A study published by The American Journal of Public Health in 1989 indicates why the police do not promote physical resistance to sexual assault. The study concluded, 'Regarding the relation between resistance and outcome of assault, our...analyses corroborate prior research in showing that resistance, particularly verbal, reduces the probability of sexual contact. Physical resistance, on the other hand, is associated with increased likelihood of contact.'
Police generally recommend preventative, cautious responses in the event of potential assault rather than active interaction. For example, Victoria Police has issued the following advice if someone near you is carrying a weapon: 'Try to make a distance between you and the threat. If people are around, try to move towards them. Keep an eye on the person and call Triple Zero (000). Remember the appearance of the person and details of the weapon. If the person gets into a vehicle, try to remember the registration number, make and colour.'
Victoria Police also recommend that you 'avoid walking in dark isolated places'. They have issued similar advice to members of the public who feel threatened in isolated places: 'Try to move to a well lit public place. Raise an alarm and draw attention to the situation. Make a safe distance between you and the threat. Call the police on Triple Zero (000).'
3. These non-lethal weapons may more easily be acquired by criminals
In jurisdictions where pepper spray and Mace are readily available for self-defence, these products are also being used by criminals.
The following is taken from a report from the Arkansas Democrat-Gazette dated July 10, 1995, when the use of pepper spray and Mace for self-defence was only beginning to become widespread. The report opens, ' A man approaches another man in a parking lot, blasts him in the face with pepper spray, grabs his wallet and runs away. Six teenagers kick open an apartment door, spray a man with Mace before he can eyeball them, then make off with his colour television. These two incidents illustrate a trend that is beginning to appear in police reports. The so-called 'self-defence sprays' - pepper spray and tear gas - are not just for defence anymore.
Like any weapon, incapacitating sprays can be turned against innocent citizens. The sprays can blind and render a person helpless - for a while. But unlike. many weapons, sprays are cheap, easy to obtain and legal to carry 'for self-defence purposes,' even by minors.'
In the United States it is difficult even to quantify the extent of this problem because, as the Arkansas Democrat-Gazette noted, ' Police don't keep statistics on how often the sprays have been used to commit crimes. In reporting crimes, most law enforcement agencies follow the FBI's Uniform Crime Reporting guidelines, which groups weapons into three categories: firearm, cutting instrument and other weapons.
The last category 'could be anything - a brick, a table, a glove. Anything,' said Lynn Bulloch of the Arkansas Crime Information Center. There is no separate category for sprays.'
Ron Bullerwell, vice president of the Fraternal Order of Police Lodge 17 in Little Rock, stated, 'Personally speaking, I believe they never should have put the stuff on the market except for law enforcement. In the wrong hands, it can be very dangerous.'
Similar problems have been reported in Canada. In a report produced from Calgary on February 13, 2014, it was noted, 'In 2011, police recorded 88 incidents where pepper spray was used. A year later that number almost doubled to 161. Then, in 2013 there were 147 incidents in the first nine months, which suggests an upward trend.'
Another concern is the use of pepper spray for what might more broadly be categorised as nuisance crimes. A report published by the Ottawa Sun on February 5, 2014, noted, 'A Gatineau hotel was evacuated for a day on the weekend after pepper spray was let loose in the ventilation system. Last week, a man was pepper-sprayed at the Ottawa courthouse. The spray has also surfaced on an OC Transpo bus in the fall.'
Pepper spray is readily available in Canada as 'bear-spray'.Tasers have also been used to commit crimes. On February 13, 2017, The Telegraph reported, 'Drivers have been warned of criminals using Tasers after a spate of attempted carjackings where suspects disabled their victims using the weapons.
West Midlands Police urged motorists to stay vigilant as they stepped up patrols following a number of 'Taser robberies'. In one shocking incident, a female runner was left with burns after she was attacked by three men in the affluent Kings Heath area of Birmingham...It was an attempted car theft by three young men who demanded a runner's car keys... She refused and an electric Taser device was used on her during a physical struggle.'
Growing use of stun guns to commit crimes is a concern in Great Britain, despite the fact that the weapons are illegal for civilian use and have to be smuggled into the country. It is also a problem in the United States where it is legal to use stun guns for personal defence. In the United States stun guns are a preferred weapon for some criminals as, because the weapons are legal, 'unlike firearms, there are no specific sentencing enhancements that would result in extra time for carrying a stun gun.'
4. Non-lethal self-defence weapons may be used in a manner that is judged to be an assault
Non-lethal self-defence devices, while not intended to be fatal or permanently injurious, can cause serious harm to those against whom they are directed.
A report published in The Guardian on November 23, 2011, examined the serious ill effects that can result from the use of pepper spray by police. By 1995, the American Civil Liberties Union, in Southern California, had identified 26 deaths connected with pepper spray use in 30 months.
A more recent North Carolina study examined 63 deaths in custody and suggested two may be partly attributable to the use of pepper spray. In both of those cases the victims were asthmatic... Capsaicin, the active ingredient in these sprays, is known to cause distress to the lungs and airways. Certain groups will be at much greater risk from its use..
Risks exist when non-lethal weapons are being used by trained police officers. The risks are likely to be greater when used by untrained members of the public. It is possible that a potential victim may use non-lethal weapons against a supposed attacker and be charged with an offence.
For 'self-defence' to be accepted as a justification of force used against a supposed aggressor a judge must accept that the accused believed that the actions taken were 'necessary' and 'reasonable' in order to defend themselves.
Under the Victorian Crimes Act 1958, a person carries out conduct in self-defence if a) the person believes that the conduct is necessary in self-defence; and b) the conduct is a reasonable response in the circumstances as the person perceives them.
There are a number of factors that could led a judge to dispute the accused's judgement of 'necessary' and 'reasonable'.
If the accused was intoxicated (by alcohol, drugs or any other substances) at the time he or she committed the relevant acts, this can be taken into account when determining whether he or she believed his or her actions to be necessary. Further, the proportionality of the accused's response to the harm threatened is (another) factor to take into account in determining whether the accused believed that his or her actions were necessary.
In addition, though there is no rule requiring the accused to retreat from an actual or perceived attack rather than defend himself or herself, a failure to retreat is a factor to be taken into account in determining whether the accused believed their conduct was necessary.
These provisions of the law mean that someone who injures another person and claims self-defence may still be found guilty of a crime.
Thus to put in a successful plea of self-defence after assaulting another person, even when using a non-lethal weapon, the judge has to accept that the accused was in a position to make a judgement, that s/he acted in a way that s/he believed was commensurate with the risk faced and that retreat was not a more reasonable option.
There are those who argue that women attempting to protect themselves may well be found guilty of a crime. Writing in The Guardian on February 24, 2018, on women attempting to protect themselves using guns, Jessica Valenti argued, 'Somehow I don't have faith that a court system that continually fails and blames rape victims would be very kind to women who kill their attackers. In fact, women who have tried to protect themselves from sexual or domestic violence haven't been lauded as second-amendment heroes - they've been arrested.'
5. Potential victims should not be held responsible for preventing the criminal behaviour of others
Many opponents of legalising non-lethal self-defence devices to protect women from assault argue that such measures place an unreasonable burden on women to prevent the crimes that are perpetrated against them.
There are those who see this as a type of 'victim-blaming' where the victim of an offence is seen as in some way responsible for it having occurred. This position was taken in the Senate by Greens senator, Janet Rice. During the debate on Senator Anning's motion that the importation of non-lethal self-defence devices be liberalised, Senator Rice responded to the proposal by stating, 'If Senator Anning really wants the government to ensure that innocent citizens are protected from harm, might I suggest that he focus his attention on interventions that prevent men's violence.
The last thing that women in Australia need now is another man in power telling us that we are responsible for violence against us. Senator Anning's motion puts the onus on women to go to extreme lengths to ensure our safety, when the priority must be to eradicate men's violence. That's where the problem is. That's where the responsibility lies. That's where government interventions need to be focused.'
In an article published on July 24, 2014, Lauren Taylor and Lynne Marie Wanamaker attempted to explain the prevalence of victim blaming attitudes. They wrote, 'As we know all too well, women and girls get tons of useless advice about how to 'protect' ourselves. And then whether we follow the advice or not, we're blamed for our own assaults.
Thankfully, more people are pushing back against these victim-blaming messages and standing up to those who believe we caused our own attacks because of something we did or failed to do.
Increasingly, society is rightfully putting the responsibility for the crime on the person who committed it and not on the person targeted. There is nothing any survivor could do or not do that could 'cause' a sexual assault, harassment, intimate partner violence, or stalking to happen.'