Zerlina Maxwell made some fantastic points on Fox News and in her Ebony columns about how telling women how not to get raped – and even arming them in pursuit of that goal – is going about the problem backwards. Here’s another, related question: even if we armed all the women of the U.S. in case of rape, how is that supposed to help them?
Because there is a massive obstacle between women having guns and women using them to prevent or stop another from raping them. It’s called the law of self-defense.
How Self-Defense Works
A person who kills another in self-defense must generally prove two things:
• the killing was subjectively lawful: that is, the person using deadly force in self-defense actually believed she was in imminent (instant, immediate, right-the-hell-now) danger of being killed, and
• the killing was objectively lawful: that is, a reasonable, disinterested person happening upon the scene would believe that the person using deadly force in self-defense was in imminent danger of being killed.
In order for a self-defense argument to stand, both the subjective and objective beliefs must be intact. The threat of deadly harm must also be imminent, or so immediate that the person acting in self-defense had no chance to retreat, call for help, or take any less-than-lethal step in order to prevent being killed.
Self-defense arguments can also be “scaled” according to the harm involved. For instance, if you face an imminent (and objectively reasonable) risk of death, you can respond with deadly force; if you face an imminent (and objectively reasonable) risk of bodily harm, you can respond with bodily-injuring force; and so on.
So What’s the Problem?
Even if we begin with the massive assumption that all women are okay with carrying firearms and with shooting or threatening to shoot potential rapists, arming women in order to prevent rape carries some major legal pitfalls. Here are three of the biggest:
1. Guns are “deadly” weapons.
Firearms fall under the category of “deadly” weapons in every U.S. state. This means that even pointing one at her rapist means a woman has committed assault with a deadly weapon.
Does she have a viable self-defense claim? Not if the rapist wasn’t assaulting her with a deadly weapon at the time – and no U.S. state currently classifies a penis as a “deadly weapon.”
If this seems far-fetched, consider the case of Marissa Alexander. Ms. Alexander was sentenced to 20 years in prison after firing a “warning shot” into the wall of her home to scare off her husband, whom she felt was threatening her with violence. Arguably, his threat and her response to his threat were relatively equal – it appears he committed assault but not battery, and she did the same. Because she used a deadly weapon, however, and he did not, the self-defense argument wouldn’t hold up in court. 
The self-defense argument depends on an equality between the force used by the person acting in self-defense and the force used by that person’s attacker. A gun changes this equation. The fact that a gun changes this equation is exactly why proponents of arming women to prevent rape support the idea – but it also significantly limits the cases in which a self-defense argument by the woman will hold up in court if she actually draws the gun. If she used a “deadly” weapon and he did not, she has no case.
2. Guns make it easy to kill people.
The fact that guns cause damage or death very easily is another reason proponents suggest arming women to protect them against rape. The lethality of guns makes them scary; presumably, scared rapists will behave themselves, and if they don’t, the gun can always be used to actually hurt them, thus stopping any assault. But what happens when a gun fired to stop or prevent a rape actually kills the rapist?
Rape, in and of itself, is not classified as “homicide” in the United States. Rape is not a fatal crime in and of itself; when a rape is followed by or causes death, rape and homicide are charged as separate crimes (if they are charged at all). This is why the death penalty for rapists who do not kill their victims has been found unconstitutional in the United States. Killing a rapist who has not killed the victim is considered a disproportionate use of power.
For the self-defense rule to apply, a woman who kills her rapist with a gun – accidentally or deliberately – must have been in imminent danger of death, not merely of rape. Granted, there are rape scenarios in which a woman would fear that her rapist was about to kill her. But even if she genuinely fears for her life and is able to use her gun to kill her rapist before he kills her, she has one more self-defense hurdle to face:
3. Was her fear “objective”?
In non-SYG states, self-defense relies both on a subjective standard and an objective one. The person acting in self-defense must believe her actions were reasonable to prevent an equal or greater harm, and a reasonable person must also believe, considering the entire situation, that the woman’s actions were reasonable to prevent an equal or greater harm.
Even if we assume a woman who shot and killed her rapist did not do so until he was actually raping her (and that she was able to shoot despite being actually raped), we cannot assume that a jury, applying the “reasonable person” standard, will think that it was reasonable for her to use deadly force (the gun) in response to a non-deadly assault (the rape).
“When is it reasonable for women to use deadly force to stop attackers?” has been a tricky area of criminal law for some time. The “reasonable battered woman” standard has been accepted by some courts and rejected by others. Even states that have accepted it, however, restrict the defense only to longstanding abusive relationships. Many women are raped within abusive relationships, but many are not.
Arising in domestic violence and abuse cases, the “reasonable battered woman” standard tries to address the fact that some fears – like the fear that a rapist will also kill them – are reasonable for women in our culture, even if they are not necessarily reasonable for men or for a generic “person.” Many women find a great deal of truth in the quote commonly attributed to Margaret Atwood: “Men worry women will laugh at them. Women worry men will kill them.”
It’s a Trap
Ironically, advocating that women carry firearms in case of rape bolsters the fear that men will not only rape them but kill them, even as it puts women in greater danger of being unable to establish that the same fear is legally reasonable. Advocating that women carry guns to prevent rape argues that women should be afraid of men. They should be so afraid, in fact, that they keep a deadly weapon on hand at all times. Be afraid men will not only rape you, but kill you; but don’t assume a court will find your fears reasonable.
This, as Zerlina Maxwell continues to so eloquently point out, is exactly backwards. Stoking women’s fear that men will rape them continues to put the onus on women to defend themselves, while doing nothing to address the actual cause of rape: rapists. It elides the facts that not all men rape, that not all rapists are men, and that not all rape victims are women. It continues to support rape culture, making future instances of rape inevitable by failing to address rape’s actual sources.
And it does all this by placing a greater burden on women who take the gun-carrying advice by forcing them into a legal trap. The situations in which a woman using a firearm to prevent or stop her rape are legally permissible self-defense are vanishingly few; the situations in which these actions are not legally permissible are legion. By asking women to use guns to prevent or stop their own rapes, we’re asking them to risk sacrificing their personal liberty in exchange for their personal safety – if guns made women safe from rape, which they don’t.
I use the term “women” and the feminine pronoun throughout this piece to underline two things. One is that the argument itself springs from the idea that we should arm women to defend themselves against male rapists, and the other is that the respective sexes in that framing change how we evaluate self-defense in very specific ways.
I do not mean to imply that only women are raped or that only men commit rape; “man rapes woman” is statistically the most common arrangement but by no means the only one. But I do believe that the implication that “women are raped by men” (note the use of the passive voice) lies at the bottom of our belief that “arming women will prevent rape” is reasonable in the first place.
 “Assault,” in most states, involves putting someone in fear of imminent harm of some kind. Some states collapse assault and battery (unwanted or unlawful touching) in the same statute, while others separate them. In either case, pointing a gun at someone counts as “assault with a deadly weapon” if the other person believes the pointing is about to lead to a shooting.
 The case also turned on a questionable and, I believe, erroneous interpretation of Florida’s “Stand Your Ground” law; the court held that Ms. Alexander had a duty to retreat, when Florida’s SYG law specifically absolves individuals of a duty to retreat and when common-law “castle doctrine” would have absolved Ms. Alexander of a duty to retreat in her own home even if Florida’s SYG law did not apply. But that point is orthogonal to the point of this piece.
 Stand Your Ground states vary in their approach to the “objective” element. Some, like Florida’s, eliminate the objective element entirely – at least on paper. Others still require an “objective” evaluation of “imminent” danger, eliminating only the duty to retreat.