What is an Affirmative Defense?

An affirmative defense is a defense in which one party admits to having committed a certain action but argues that there should be no liability because there was a good reason for the action. A person might use an affirmative defense in both civil and criminal cases. In a civil case, an affirmative defense might not dispute the facts of the incident but may argue about who is responsible.

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Types of Affirmative Defense

An affirmative defense in criminal law might claim that the person took the action in self-defense or to defend others or property. A person could also argue that they were entrapped or involuntarily intoxicated. Insanity is another form of an affirmative defense in a criminal case. Unlike other forms of affirmative defense, a person who successfully argues an insanity defense will usually not be released but may be placed in a psychiatric facility. In civil law, a person might also argue in favor of the defense of others or some variation of necessity. With an assumption of risk defense, a person could argue that someone injured on their premises was aware of the risk and took it anyway. Sometimes, the assumption of risk may overlap with another type of civil affirmative defense, contributory damage. This means the injured party acted in a negligent way to contribute to their own harm, such as agreeing to ride with a drunk driver. Duress, which describes a kind of coercion, is another affirmative defense in both civil and criminal law. Many people may be familiar with statutes of limitation, which is also an affirmative defense.

Criminal Affirmative Defense Examples

One of the most famous and controversial cases of an affirmative defense in a criminal case over the last decade is that of George Zimmerman, who shot and killed a 17-year-old, Trayvon Martin, whom he claimed had attacked him. Zimmerman successfully argued that he acted in self-defense and was acquitted although many believed his actions were racially motivated. One of the most famous successful affirmative defenses that used insanity was that of John Hinckley, Jr. who attempted to assassinate President Ronald Reagan. As Business Insider reports, that case led to changes in many state laws regarding the insanity defense and shifted the burden of proof onto the defendant.

Civil Affirmative Defense Examples

In 2009, an attendee of the famous Burning Man festival was badly injured when he tripped and fell into a fire. The festival did not argue that the incident did not occur but said that the man was responsible for his own injuries. This would be an example of the assumption of risk defense. As SF Gate reported, courts agreed. Burning Man tickets include a provision that says attendees assume the risk for any injury, loss of property or death that occurs at the festival.

There are a number of other different types of affirmative defense. It is a common approach to defense and can be useful in cases in which there is clear evidence that the defendant was involved in the incident, whether it is civil or criminal. The existence of affirmative defense is a recognition of the fact that there is often a good deal of nuance in both civil and criminal cases that should be taken into account when making a judgment.