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Duty to Retreat from One's Home, When Attacked by a Cohabitant?

Even states that generally impose a "duty to retreat" before using deadly self-defense exclude self-defense in the home -- but what if the self-defense is against a cohabitant?


Wyoming is one of the few Western states that recognizes a "duty to retreat"—i.e., provides that people lose their rights to deadly self-defense when they can avoid the threat to life or limb with perfect safety by fleeing. But there's an exception to the "duty to retreat" called the "castle doctrine": Even in duty-to-retreat states, people need not retreat if they are assaulted in their own homes. (All this assumes, by the way, defenders who aren't at fault in the original attack, and are where they have a right to be.)

Now some duty-to-retreat states recognize an exception to the exception: When people are attacked in their own homes by cohabitants who share the same homes, the castle doctrine doesn't apply, and the duty to retreat kicks back in. In last week's Widdison v. State, the Wyoming Supreme Court held that the castle doctrine does apply (and thus the duty to retreat does not apply) in such a situation:

The majority of jurisdictions that have considered the issue conclude that a cohabitant does not have a duty to retreat in his own home when, through no fault of his own, he is assailed by another cohabitant. Linda A. Sharp, Homicide: duty to retreat where assailant and assailed share the same living quarters, 67 A.L.R.5th 637, § 2(a) (1999 & 2017 Supp.) (fourteen jurisdictions hold cohabitant has no duty to retreat; seven jurisdictions require cohabitant to retreat, one of which (Florida) has since abandoned that rule). These courts reason that it would be illogical to require retreat when one is attacked in one's own home by a cohabitant, but not when attacked by a stranger. "The danger posed and the sanctuary of the dwelling is the same regardless of the status of the attacker." …

We require reasonable retreat in self-defense outside the home because the law presumes that there is somewhere safer to go-home. But self-defense in the home is based on the premise that the home is "a place critical for the protection of the family." Requiring retreat from the home before acting in self-defense would require one to leave one's safest place…. "[A] man assailed in his own dwelling … is under no duty to take to the fields and the highways, a fugitive from his own home…. Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home." …

In contrast, a minority of jurisdictions distinguish encounters between cohabitants and intruders and require retreat when one is attacked by a cohabitant. Those courts focus on the "entitlement of both combatants to occupy the house and the fact that they usually are related, and reason that the parties have some obligation to attempt to defuse the situation."

We conclude that the majority rule is the better-reasoned approach. When a person is attacked within her dwelling, the right to defend herself and the privilege of non-retreat should not depend upon the identity of the attacker. "Further, forcing a resident to retreat from the home is at odds with the historical notion of the home as a place critical for the protection of the family."

In addition, applying the castle doctrine to cohabitants will better protect victims of domestic violence. As the Florida Supreme Court recognized when it abandoned the minority view, "placing a duty to retreat from the home on the defendant may serve to legitimize the common myth [that victims of domestic violence are free to leave the battering relationship any time they wish to do so, and that abuse could not have been so bad because otherwise she would have left] and allow prosecutors to capitalize upon it."

The defendant in this case was a woman who stabbed her uncle (Jones), with whom she was living; apparently both were quite drunk at the time:

Mr. Jones did not have a clear recollection of the events leading up to the incident. He did testify that when their argument began to escalate, he told Ms. Widdison that she had to leave his home.

Ms. Widdison testified that the conflict arose because Mr. Jones insisted that she give him oral sex in exchange for staying at his home. She stated that he threatened her with a knife and pinned her to the ground, and that she wrestled the knife away from him. She recalled nothing about the stabbing or a second knife.

Ms. Widdison also testified that she was afraid Mr. Jones was going to kill her and that he had threatened her with weapons before. The defense presented two additional witnesses. Darcey Fulmer, another of Mr. Jones' nieces, testified that Mr. Jones had a propensity for violence and inappropriate sexual solicitation and touching, especially when he was drunk. The second witness, Mr. Jones' nephew, Yancey Norton, also testified regarding Mr. Jones' reputation for violence and for making unwanted sexual advances. Mr. Norton recounted an incident in which Mr. Jones had locked him and Ms. Widdison in the basement and threatened to kill them with a gun he was holding.

The district court interrupted the testimony and prohibited the defense from presenting that or other testimony regarding specific instances of Mr. Jones' conduct. The defense rested without calling two additional family members who had been listed as witnesses to testify regarding Mr. Jones' reputation and propensity for violence….

The court [also] refused Ms. Widdison's proposed [jury] instruction on the "castle doctrine." … The jury returned guilty verdicts on both counts, and the district court sentenced Ms. Widdison to concurrent sentences of twenty-five years on the attempted second-degree murder charge and eight to ten years on the aggravated assault charge.

There was some dispute about whether Widdison was actually living at the house, but the court pointed out that there was enough evidence that the jury should have been instructed to resolved the dispute:

The State argues that Ms. Widdison was legally a trespasser because Mr. Jones had asked her to leave prior to the stabbing and that based upon the evidence, the district court's conclusion that Mr. Jones' home [because "You don't ask somebody to leave their own residence if it's their residence, if it's their house"] was not Ms. Widdison's residence was a reasonable one. However, even the district court recognized that the determination needed to be made in the face of conflicting evidence. The court remarked, "The testimony seems to be conflicting on that category and so I made a judgment call in that respect." Unfortunately, it was not the district court's job to make that call.