Murder in excess of permissible self-defense and liability under the Criminal Code of the Russian Federation

In an extreme situation, when there is a direct threat to your life, it is very difficult to control yourself. People sometimes really lose their heads out of fear, and the only thing they think about at such moments is how to escape. Therefore, deaths, unfortunately, cannot be excluded.

But murder in self-defense, even if a person was simply defending himself, will not go unpunished. In this article we will talk in detail about self-defense, or more precisely about its unintended consequences.

What is necessary defense

The article of the Criminal Code of the Russian Federation for murder in self-defense provides for punishment for causing more harm to the criminal than he could have caused to the victim. The amount of punishment is determined by the judge who considers the criminal case in each specific case individually, based on the circumstances of the crime.

Article 114 of the Criminal Code talks about necessary defense. According to the explanations of the Plenum of the Supreme Court, defense will be considered necessary in the case when a person repels an attack by a criminal. The assault must not involve violence that is dangerous to life or health. The necessary defense arises not only from the moment the crime begins, but there is also a threat that the perpetrators will proceed to attack. In such a situation, the court must assess the reality of the threat.

Download for viewing and printing:

Article 105. Murder of the Criminal Code of the Russian Federation

Article 114. Causing grievous or moderate harm to health when exceeding the limits of necessary defense of the Criminal Code of the Russian Federation

Corpus delicti

As already mentioned, a crime under Article 108 of the Criminal Code of the Russian Federation will be committed when a person commits actions that will be considered an excess of necessary self-defense. For a clearer understanding of such a concept as necessary self-defense, it is worth referring to Resolution of the RF Armed Forces No. 19.

1. Firstly, the means of self-defense must be consistent with those used by the attacker . For example, using a bladed weapon against a person who used only his physical strength will be regarded as violating the boundaries of what is permitted for self-defense (and this is at best).
2. Secondly, the threat to health and life must be quite significant , taking into account the fact that the Resolution separately stipulates this nuance: it does not matter what skills and what physical training the victim has. An attack with a knife is a significant threat both to an ordinary person and to someone who has taken special self-defense courses.
3. Thirdly, a violation of the norms of self-defense is also when the attacker no longer poses any threat (stunned, immobilized, or simply calmed down), and the victim continues to “defend” himself, causing additional damage to the person.
4. Fourthly, self-defense is not such if a person was the first to go into conflict, provoking the attacker .
5. Fifthly, the law allows the deprivation of the life of an aggressor only if it was the last resort to save one’s own life . Otherwise, the court will consider it not as an excess of self-defense, but as murder.

These were the most basic provisions of permissible self-defense measures and, therefore, possible violations of it. Of course, every case is individual, and it is impossible to take everything into account at once. Let's talk in more detail about murder in self-defense, or more precisely about what comes after it.

What to do if a child is beaten at school?

Types of excess of self-defense

The legislator provides two options for exceeding self-defense:

• the attacker is killed as a result of exceeding the limits established for acceptable defense;
• the criminal died as a result of exceeding the measures necessary for his arrest.

Attention! The danger of the situation under consideration is that after exceeding the limits of defense, the victim may become accused. Accordingly, this is the basis for criminal prosecution under the Criminal Code of the Russian Federation.

Some issues of the institution of imaginary defense in Russian criminal law

 This article examines certain issues of the theory and practice of the institution of imaginary defense in Russian criminal law, analyzes groups of imaginary defense and criteria for the legality of the actions of the defender in this state in the absence of actually a socially dangerous attack.

Key words : socially dangerous encroachment, reality of encroachment, necessary defense, imaginary defense, criteria of legality, limits of necessary defense, error in criminal law, factual error.

This article examines certain issues of the theory and practice of the institution of sham defense in Russian criminal law, analyzes the groups of sham defense and the criteria for the legality of the actions of the defender in this state in the absence of a socially dangerous encroachment in reality.

Key words: socially dangerous encroachment, the reality of the encroachment, necessary defense, imaginary defense, criteria of legality, limits of necessary defense, error in criminal law, factual error.

“The salvation of drowning people is the work of the drowning people themselves” is an aphorism quite often used in everyday life. They often say this as a joke, and sometimes seriously, when they want to focus on solving some of a person’s problems themselves, without counting on anyone’s help [10].

Let us recall the text of the slogan that hung in the "Carton Man" club in the city of Vasyuki, where Ostap Bender, who did not know how to play chess, gave a session of simultaneous play on 160 boards from the novel by I. Ilf and E. Petrov "The Twelve Chairs" (in the original: "the matter of help drowning - the work of the drowning people themselves"). This expression is a parody of the famous words of Karl Marx that the emancipation of the workers must be the work of the workers themselves.

Turning to international and domestic legal acts, one can see that they enshrine the right of a person and citizen to the protection of the law from any interference or encroachment on such inalienable rights as given to him from birth, such as the right to life, liberty and personal integrity [1 ].

Let us call a special norm within the framework of the institution under study Article 45 of the Constitution of the Russian Federation, which regulates the right of everyone to protect their rights and freedoms by all means not prohibited by law [4]. Thus, the fundamental law of our state provided its citizens, when protecting rights and freedoms, with the opportunity to act at their own discretion, using any methods not prohibited by law.

This begs the question: isn’t there an analogy in the above aphorism with the institution of necessary defense, which, on the one hand, proclaiming the duty of the state to ensure the protection of citizens from any attack, on the other hand, securing the right to self-defense from the same attack, entrusts the defender himself bears the burden of defense, ordering him to act within the limits of necessary defense.

The guarantee of this constitutional provision should (!?) be the current criminal law provision on necessary defense, provided for in Art. 37 of the Criminal Code of the Russian Federation. It is also designed to ensure the protection of the personality and rights of the defender and other persons, as well as the protection of legally protected interests of society or the state from socially dangerous encroachment. What's really happening?

From the content of the constitutional provisions it follows that a person who finds himself in the position of a defender can defend his rights and freedoms by all means not prohibited by law. The question arises, what methods are prohibited by law, if in paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 No. 19 “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime” [6] it is stated that when defending against a socially dangerous attack involving violence dangerous to the life of the defender or another person, or with an immediate threat of such violence (Part 1 of Article 37 of the Criminal Code of the Russian Federation), as well as in cases provided for in Part 2.1 of Article 37 of the Criminal Code of the Russian Federation [5], the defending person has the right to cause harm of any nature and extent (emphasis added) to the attacking person? In other words, a person who finds himself in a situation of danger to life or unexpected attack can use weapons legally in his possession, objects used as weapons, cause serious harm to the attacker or even kill him. If a person has a weapon illegally, this will result in the prescribed criminal or administrative liability.

In our opinion, there is a contradiction here between the constitutional norm and criminal law. It seems that from the text of Art. 45 of the Constitution of the Russian Federation, the words “not prohibited by law” should be deleted. And in the end, in our opinion, part two of this article should read like this: “Everyone has the right to defend their rights and freedoms by any means.” It follows from this that, for example, in a truly life-threatening attack, the defender may use an unregistered firearm in his possession. Bringing him to justice for illegally carrying firearms is a secondary issue.

Unfortunately, it should be noted that in fact, seemingly broad rights granted to the defender often smoothly transform into his obligations to bear criminal liability for exceeding these rights. E. F. Pobegailo also wrote about the “dominance” of the accusatory bias in resolving criminal cases about necessary defense and exceeding its limits [11, p. 769].

One of the controversial issues that should be discussed in more detail is imaginary defense. Reality, as one of the conditions of necessary defense related to an attack, means the existence of an event in reality. The presence of an encroachment only in the imagination, in the consciousness of the person defending himself, is called in the legal literature imaginary defense. As N.D. Durmanov pointed out, all the circumstances characterizing the necessary defense are absent during an imaginary defense [9, p. thirty]. There is no definition of imaginary defense in the criminal law, since it is not a criminal legal category [7, p. 331]. This exclusively scientific concept exists for the purpose of correctly qualifying the actions of a person in a state of necessary defense as a circumstance excluding the criminality of the act.

In contrast to necessary defense, the actions of a person who defends himself from an imaginary attack cannot be recognized as socially non-dangerous and useful, since in reality the latter does not exist. This attack is present only in the imagination of the person who resorted to defense. In other words, imaginary defense consists in the fact that a person mistakenly believes that an attack is taking place, which in fact is not [13, p. 70].

The Plenum of the Supreme Court of the Russian Federation recommends that courts distinguish between the state of necessary defense and the state of imaginary defense, when there is no real socially dangerous encroachment, while the person mistakenly assumes its presence. If a person was not aware, but due to the circumstances of the case should and could have been aware of the absence of a real socially dangerous attack, his actions are qualified under the articles of the Criminal Code of the Russian Federation, which provide for liability for crimes committed through negligence. When a socially dangerous attack was actually absent, and the surrounding situation did not give the person any reason to believe that it was happening, then his actions are qualified on a general basis” [6].

Theoretically, cases of imaginary defense can be divided into the following groups. One of them is when the defender makes a mistake in assessing the actions of the victim, incorrectly considering them socially dangerous, although they did not have such a quality or were even lawful.

Another group is when the defender makes a mistake in the situation of a real attack. And one of the types of such an error is an error regarding the identity of the attacker, consisting in the fact that the person against whom defensive actions are carried out is not the attacker.

In imaginary defense, harm is caused to a person who does not commit the attack. It follows that the harm caused during imaginary defense is socially dangerous, so the question of the responsibility of the defender reasonably arises. In those cases where the latter did not realize the error of his ideas regarding the social significance of the behavior of the victim, the personality of the victim, he should not and could not realize his mistake, there is no guilt in his actions, and he cannot be held criminally liable. That is, he cannot be blamed for such actions that, in the conditions of a real socially dangerous attack, would be lawful if the defender not only did not realize, but also could not realize the fallacy of his assumption about the presence of an attack. In this situation, the person is not punished for anything, since with due care he could not help but mistake the apparent attack for what was really happening.

However, this position contradicts Art. 37 of the Criminal Code of the Russian Federation. A person can be in a state of necessary defense only in the presence of a socially dangerous attack. If it does not exist, then the necessary defense cannot exist, just as, in this case, its limits cannot be exceeded. You cannot exceed what is not there. In this case, the defender is not subject to criminal liability not because he is in a state of necessary defense, but due to the absence of his guilt. This is how the issue of liability is resolved in the case of an innocent imaginary defense.

In cases where the entire situation of the incident allowed the defender to understand the error of his assumption regarding the attack or the identity of the victim and not make a mistake, causing harm to him is unacceptable and serves as the basis for criminal liability of the perpetrator.

Imaginary defense is possible only due to the defender’s mistake in assessing the social significance of the victim’s actions. In this case, some of his actions, which objectively do not create a danger to social relations, under the influence of subjective delusion are perceived as a dangerous encroachment [12, p. 295].

Agreeing with the researchers, we state that actions committed in imaginary defense are the result of a factual error. Therefore, the obvious conclusion is that its legal consequences should be assessed according to the rules of error of fact. An imaginary defense can well be called a special case of a factual error [8, p. 287–288].

When qualifying an imaginary defense, only one approach is possible, arising from the rules of liability for crimes committed under the influence of an error, namely: a guilty imaginary defense cannot be recognized as an intentional crime, since with such a “defense” the perpetrator is not aware of the socially dangerous nature of his actions. It entails liability according to the rules providing for liability for careless crimes (Articles 109 and 118 of the Criminal Code of the Russian Federation). The foregoing applies to cases where the ostensibly defending person causes harm, which in the conditions of a real attack would be proportionate.

If harm is caused that is unacceptable in the context of repelling a real attack, two options for liability are possible.

The first is when the person defending himself through negligence causes grievous harm to the victim.

The second option is when the ostensibly defending person deliberately causes harm to the victim, which is unacceptable in the context of repelling a real attack. With such an imaginary defense, criminal liability arises as for an intentional act, depending on the consequences under Art. 105, 111 or 112 of the Criminal Code of the Russian Federation.

When qualifying the actions of a person in the event of harm to them in a situation of imaginary defense, significant difficulties and contradictions arise in theory and law enforcement practice. In order to eliminate them, supporting the opinion of V.I. Akimochkin [8, p. 289], we believe it is reasonable to supplement Art. 37 of the Criminal Code of the Russian Federation, part 2.2, stipulating that the actions of a person who caused harm in a state of imaginary defense in the absence of a socially dangerous attack in reality should be assessed according to the rules of factual error.

Thus, imaginary defense is considered as a careless crime only in the case when the person actually made a mistake through his own fault in assessing the situation and mistook the actions of the victim, which were not criminal in nature, for a socially dangerous attack. If there was no such misconception, then we cannot talk about an imaginary defense. The actions of the perpetrator in these cases should be considered murder or intentional infliction of grievous bodily harm.

In conclusion, let us summarize: before saving yourself, a “drowning person,” from any attack, including an imaginary one, following the well-known proverb, you must measure seven times and cut off one. This folk wisdom warns us against making spontaneous decisions, reminds us that we must weigh every step, think about every action and foresee the consequences of our actions in advance. And only after thoroughly considering all the risks and benefits can you finally get down to business. Does this correspond with the necessary defense? Who knows, maybe yes.

Literature:

1. The UN Charter was signed on June 26, 1945 // SPS Consultant Plus. Access mode: www.consultant (Date of access: 07/13/2020).
2. Universal Declaration of Human Rights December 10, 1948//Human Rights Collection of international treaties. - NY. - UN Publishing House, 1983. [Electronic resource] // SPS Consultant Plus. Access mode:
3. www.consultant (Accessed 07/13/2020).
4. International Covenant on Civil and Political Rights, which entered into force on March 23, 1976 [Electronic resource]// SPS Consultant Plus. Access mode: www.consultant (Date of access: 07/13/2020).
5. Constitution of the Russian Federation. Adopted by popular vote on December 12, 1993. // Russian newspaper dated December 25, 1993.- No. 237.. [Electronic resource] (as amended and supplemented as of July 31, 2020) // SPS Consultant Plus. Access mode: www.consultant (Date of access: 07/20/2020).
6. Criminal Code of the Russian Federation.//Collection of legislation of the Russian Federation. 1996. No. 25, Art. 2954 (as amended on July 31, 2020) // SPS GARANT // SPS Consultant Plus. Access mode: www.consultant (Date of access: 07/23/2020)
7. On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime: Resolution of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 No. 19 // SPS Consultant Plus. Access mode: www.consultant (Date of access: 07/20/2020).
8. Akimochkin V.I. On the issue of imaginary defense and factual error in criminal law.//Man: crime and punishment. 2021. T. 27 (1–4). No. 3.
9. Akimochkin V.I. Imaginary defense or factual error: comparative legal analysis // Bulletin of the Moscow State Linguistic University. Education and pedagogical sciences. Vol. 3. (832). 2021.
10. Durmanov N.D. Soviet criminal law. M., 1961.
11. Serov V.V. Encyclopedic dictionary of popular words and expressions. — M.: “Lockeed-Press”.-. 2003.https://info.wikireading.ru/230118. [Electronic resource] // SPS Consultant Plus. Access mode: www.consultant (Date of access: 08/30/2020).
12. Pobegailo E.F. “Selected Works.” St. Petersburg: Legal Center Press, 2008.
13. Criminal law of the Russian Federation. General part: textbook / ed. prof. B.V. Zdravomyslova. M., 1999.
14. Yakubovich M.I. The doctrine of necessary defense in Soviet criminal law. M., 1967.

Criteria for assessing the legality of causing harm

At the legislative level, to clarify the provisions on self-defense, a Resolution of the Plenum of the Supreme Court was adopted, which specified the criteria for assessing the actions of the defender and the limits of self-defense. Below we will present the signs that are subject to assessment when deciding whether the limit is exceeded.

Object of a criminal act

The law enforcement officer must evaluate what the criminal act is aimed at. This could be the health or life of a person or his close relative. The object in some cases is dignity, property belonging to the person defending himself from attack.

Method of achieving a criminal goal by an attacker

The method involves the attacker using objects and means to achieve a criminal goal. These include:

• knives;
• heavy objects;
• weapon;
• other.

Severity of the expected consequences

The judge considering the criminal case must assess the nature of the assault, namely, whether it did or did not pose a real danger to the life or health of the defender or people close to him. Expressed or demonstrated threats of encroachment are also subject to assessment. Reality is assessed through the prism of actions committed by an attacker, for example, this could be injuries to vital organs and the like.

Important! If the defense was directed against an attack that is not associated with violence dangerous to the vital functions of the victim’s body, then if its limits are exceeded, it is considered unlawful.

Causing serious injury (death) to the offender

It is legal to cause death or serious harm to the attacker only if the criminal act involves dangerous violence.
The situation of causing harm to the attacker will be regarded as exceeding the limits of defense, despite the fact that the defender is aware of the possibility of not performing these actions in order to stop the attack. In this case, the responsibility established by criminal law is applied to the defendant.

Assessment of the circumstances of the attack

The place and time of the crime must be assessed.
In particular, if an attack is carried out at night, then it is considered more dangerous than what is committed during the day. In a deserted place, an illegal act is assessed as more dangerous than in a place where there are many people. The circumstances of the crime are also subject to assessment, including:

• circumstances preceding the attack;
• surprise or expectation for the defender;
• use of weapons by the attacker;
• number of criminals.

The ability of the defender to repel an attack

It is taken into account whether the defender could repel the attack, and gender, age, and state of health (both mental and physical) are assessed. The assessment is given to the listed criteria regarding the attacker and defender.

Features of the crime

The line between murder in self-defense and premeditated murder (Article 105) is so small that, turning to existing judicial practice, it is clear that situations qualified under 108 of the Criminal Code of the Russian Federation can be counted on one hand. In this regard, a logical question arises: who is to blame for this, the court or the people themselves. And here the opinions of lawyers differ, since, indeed, sometimes guilty verdicts are passed when it seems that there are no great grounds for qualification under Article 108, but Unfortunately, the court sometimes takes a simpler accusatory route.

Surely many (especially those who are involved or interested in jurisprudence) know a case that is popularly called the “Ivannikova Case”.

The situation was as follows. Citizen Ivannikova, returning home, decided to hitch a ride and ask for a ride. Citizen Baghdasaryan responded to the request. Instead of taking the woman to the address she needed, the driver drove the car to a dead end and blocked all the windows and doors. Bagdasaryan began to take active steps to induce the woman to have intimacy, but, having received a refusal, began to behave aggressively and tried to rape Ivannikova with all the accompanying actions - threats, blows, etc. Somehow, during the scuffle, the woman ended up in the hands of the knife she used to stab the attacker in the leg. Due to his wound, Baghdasaryan died before the ambulance arrived.

Instead of Article 108 of the Criminal Code of the Russian Federation, the crime was initially classified under Part 4 of Article 111 of the Criminal Code of the Russian Federation (intentional infliction of grievous harm leading to death), and subsequently reclassified to Article 107 of the Criminal Code of the Russian Federation (murder in a state of passion). The court also accepted all civil claims from the relatives of the deceased in the amount of more than 200,000 rubles. Here is a non-fictional situation in which, it would seem, everything is quite clear, but for some reason the court and the investigation interpret the circumstances in a completely opposite direction. An example should be given of a situation that was qualified under Article 108 of the Criminal Code of the Russian Federation:

A group of young people were “culturally” relaxing in the apartment, drinking alcoholic beverages. Due to personal hostility, a conflict arose between the two defendants. Full Name 1 forcefully pushed his opponent Full Name 2 onto the corner of the kitchen table, as a result of which Full Name 2 received a puncture wound with a blunt object. But Full Name 1 did not intend to stop there and, picking up a kitchen knife, began to threaten Full Name 2.

Full name 3, realizing that the situation had taken a bad turn, tried to intervene and calm down full name 1, but in his attempt he only received a puncture wound with a knife in the abdominal area. Full Name 2 rushes at Full Name 1 in order to take away the knife and, during a short fight, strikes the attacker’s hand with a knife, accidentally cutting an artery. The attacker died from his wound in the ambulance.

A reasonable question arises: these two examples described above are similar in many ways, but in the first case the punishment was much more severe than in this example.

Based on this, as well as numerous recommendations from practicing lawyers, it is necessary to highlight the circumstances and evidence that can help confirm the necessary self-defense:

• the presence of cuts, bruises, abrasions, scratches on the accused;
• expert opinion;
• testimony of witnesses and eyewitnesses;
• video or audio recording of the incident.

But the key word here is “may,” since sometimes even this information is ignored by the investigation and the court.

The line between murder (causing serious injury), defense and exceeding the limits of defense

When deciding whether to exceed defense limits, some points need to be taken into account:

1. If the attacker causes death or serious harm to health, provided that his criminal actions did not create a threat to the health and life of the defender, the latter is held accountable in accordance with the provisions of the Criminal Code.
2. When a criminal uses a weapon or other dangerous objects, and the defender perceives a real threat to himself, he needs to minimize the consequences of the defense in order to avoid punishment.
3. If, after the defender has committed actions, there are no grounds for fear, he must stop defending.
4. When a crime involves violence dangerous to life or health, the legislator gives the defender the right to cause harm of any severity to the perpetrator.

Arbitrage practice

Example 1. Marina was walking in the park with a friend, the girls met two young men, they invited them to their place. Marina’s acquaintance very soon began to insist on sexual contact, blocked everyone from leaving the apartment, mocked the woman, and insulted her.

Desperate, Marina ran to the kitchen, grabbed a knife there and stabbed the offender in the chest. As a result, the man died.

In court, Marina insisted that she was defending herself. However, the woman's testimony was not confirmed.

The judge determined that the woman's life was not in danger at the time of the stabbing. The man did not threaten anything, did not beat Marina, he just stood at the door. Qualification under Article 108 did not take place.

Marina was sentenced to 5 years in prison under Article 111 (intention + grievous bodily harm + death).

Example 2. Sergei and two friends, Konstantin and Andrey, had the usual alcoholic gatherings in their lives. At some point, Sergei and Andrei began to quarrel, and Andrei hit Sergei in the face several times.

Konstantin did not separate his friends, but joined in beating Sergei. Andrei grabbed the knife and tried to hit Sergei, but he took the weapon away and used it himself. As a result of damage to the femoral artery, Andrei soon died.

Sergei was sentenced under Article 108 (imprisonment, term - 1 year 4 months). However, Sergei filed an appeal. At the next court hearing, the verdict was overturned for several reasons.

It was taken into account that Sergei alone defended himself from two attackers. The threat to Sergei’s life was recognized as real, since Andrei delivered the first blows, and it was he who grabbed the knife.

Legal practitioners note that Russian courts have developed a harsh punitive policy in such cases. It can be very difficult to prove that a random killer actually defended himself within acceptable limits. As a result, the victims of the attack find themselves accused and sentenced very harshly.

And finally, we will talk about killing a dog in self-defense.

To learn how to properly defend yourself with a knife, and what awaits a person who kills another using such a weapon in self-defense, watch the following video:

What punishment is provided for in Art. 108 of the Criminal Code of the Russian Federation

The Criminal Code for murder as a result of excess of self-defense provides for liability in the form of correctional labor, which is prescribed for a period of up to 24 months, and forced labor for the same period. The culprit may be deprived or limited in freedom for up to 2 years.
If the attacker causes death during detention by exceeding the measures, the term of the listed types of punishment increases to three years.

Download for viewing and printing:

Article 108. Murder committed when exceeding the limits of necessary defense of the Criminal Code of the Russian Federation

Killing a dog in self-defense

There is no special section or set of laws dedicated to dogs in Russia. At best, there are some regional acts.

Only Article 245 of the Criminal Code of the Russian Federation talks about cruelty to animals, but the term “self-defense” is not mentioned. We are talking only about hooliganism, malicious intent and self-interest.

If a dog attacks a person, practice shows that the owner of the animal will answer. Most often, Article 118 on causing harm is used.

In any case, killing a dog cannot be equated to taking the life of a person. Especially if the animal is stray, and therefore can be extremely dangerous.

What advice do practicing lawyers give to their clients when it comes to Article 108? There are only a few of them: avoid dangerous situations, study effective methods of self-defense in theory and practice, and also maintain clarity of thinking in any situation. In this case, the threat of turning from a victim into a criminal is significantly reduced.

Cases of victim blaming

The defender is assigned the status of an accused in the event that he exceeds the limits established for self-defense.
When the victim had the opportunity to avoid a retaliatory attack, but he did not do so, the norms of criminal law are applied to him. Also, the victim will be called to account in the case where the attacker decided to stop the attack, but was still deprived of his life. If the attacker was provoked into committing illegal actions by the defender himself, such a situation is not considered as self-defense. Violence is considered dangerous as long as the perpetrator is holding a weapon; after he is disarmed, the defender must not use any type of weapon against him.