NECESSARY DEFENSE AGAINST DOMESTIC VIOLENCE: SETTING THE PROBLEM

УДК 344.233

ORCID: 0000-0003-1681-7384

DOI 10.37566/2707-6849-2024-3(48)-7

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Hanna ANDRUSIAK,

Associate Professor of the Department of Criminal Justice and Law Enforcement, Faculty of Law, Volyn National

Lesya Ukrainka National University of Volyn,

PhD in Law, Associate Professor

NECESSARY DEFENSE AGAINST DOMESTIC VIOLENCE: SETTING THE PROBLEM

The article explores the problem of the emergence of the state of necessary defense in the victim of domestic violence. It is proved that cumulative domestic violence as a whole, and not its individual episodes, should be evaluated in order to objectively establish whether the victim of domestic violence was in a state of necessary defense. The last episode of domestic violence, which completes the line of behavior of the offender, due to his discriminatory attitude towards the victim in order to maintain a dominant position in relation to the victim, is only one of the similar manifestations of the atmosphere of domestic violence that has developed over a long time. Repeated violence and threats from the abuser create a feeling of constant threat of violence in the victim. It is stated that in criminal proceedings where domestic violence was used for the circumstances of the case, which was of a criminal nature, and which necessitated the victim to defend himself, as a result of which damage to the life and health of the offender is caused, all objective circumstances should be checked in detail, somehow, the time of committing a socially dangerous encroachment in the form of domestic violence, circumstances that preceded or occurred at the time of the assault or immediately before it. Domestic violence as a socially dangerous encroachment as part of the necessary defense is characterized by the emergence of a cumulative emotional state in the victim, which is the result of a long accumulation of cases of domestic violence, each of which in a certain way affects the consciousness and will of such a victim, which leads to a long accumulation of emotional tension, as a result of which the pressure of emotions gradually increases to the critical limit of the experience. In this case, an emotional explosion can occur even in certain cases for a minor reason, which dynamizes the accumulated mental tension. It is proposed to amend part 5 of Article 36 of the Criminal Code of Ukraine, indicating that unlimited necessary defense is also allowed to protect against domestic violence by the offender.

Key words: necessary defense, domestic violence, socially dangerous encroachment, criminal offense, criminal liability, circumstance excluding criminal wrongfulness of an act, systematic nature, continued criminal offense, cumulative emotional state of the victim, qualification.

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