Dave is angry and intoxicated. Terry the Troll goes up to Dave and starts insulting him and his mother (etc.), and Dave lashes out and starts trying to beat up Terry.
My question is if Terry "cleaned Bob's clock" in return, could it be considered self-defense? Or does Terry's initial taunting disqualify self-defense as an excuse?
Edit: Editted to focus only on the self-defense question.
That depends on whether the legislature has made this a disqualifier. In North Carolina, G.S. 14-51 disqualifies a person from using the self-defense defense when the person "Initially provokes the use of force against himself or herself", with an exception to the disqualification if the attack puts him in imminent danger of death or serious bodily harm and he cannot withdraw, or if the person has "retreated". The initial aggressor doctrine is also part of Louisiana law. There is a jury instruction on this matter in Washington state which further clarifies that
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense [or] [defense of another] and thereupon [kill] [use, offer, or attempt to use force upon or toward] another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight, then self-defense [or] [defense of another] is not available as a defense. [Words alone are not adequate provocation for the defendant to be the aggressor.]
Under those circumstances, self-defense is not definitively off the table. One would then look at the general instruction for self defense, paying attention to whether Terry has an alternative to using force. On the one hand, in Washington there is no "duty to retreat". But force is legal only when necessary. That term is defined in RCW 9A.16.010
"Necessary" means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended.
The solution, stated in the comments but not the instruction, is that "the court may need to make clearer to the jury that the defendant was not obliged to retreat rather than defend". But also, "At the same time, the prosecutor should not be deprived of the argument that other alternatives to the use of force may have existed". So the judge will have to also read the no duty to retreat instruction:
It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that [he] [she] is being attacked to stand [his] [her] ground and defend against such attack by the use of lawful force. [The law does not impose a duty to retreat.] [Notwithstanding the requirement that lawful force be “not more than is necessary,” the law does not impose a duty to retreat. Retreat should not be considered by you as a “reasonably effective alternative.”]
In that case, the jury must decide whether it was really necessary for Terry to clean Bob's clock in order to stop Bob's assault.
The elements of self-defence are set out in the Criminal Code at s. 34.
Among other things, the defensive act must be "reasonable in the circumstances" (s. 34(1)(c)). In determining whether the defensive act is "reasonable in the circumstances," the court must consider all the circumstances, including, but not limited to "the person's role in the incident" and "the nature and proportionality of the person's response to the use or threat of force" (s. 34(2)(c), (g)).
R. v. Khill, 2021 SCC 37:
accused persons should not be able to instigate an assault so that they can claim self‑defence. . . . [T]hose who provoke an assault are causally responsible in a real sense for the violence that ensues even if they did not intend to provoke an attack and . . . this should diminish their right of response.
But that is just one of the factors. The fact that an accused was the initiator or instigator does not rule out that self-defence may still be available as a defence for them. None of the factors alone can "disqualify" someone from self-defence:
This is a global, holistic exercise. No single factor is necessarily determinative of the outcome.
