What’s an affirmative defense?

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An affirmative defense is a type of legal defense that can be put forward by a defendant in support of his or her position in the case. As a general rule, through an affirmative defense, a defendant presents additional facts that serve to diminish civil claims or criminal charges brought against him or her. This occurs without contesting any element relevant to the alleged offence. In other words, the defendant agrees with the facts presented by the plaintiff or the prosecution, but also introduces additional facts that mitigate the defendant’s responsibility or culpability.

For example, suppose a plaintiff sues a defendant for damages related to a traffic accident. Specifically, the plaintiff alleges that the defendant struck the rear of the plaintiff’s car, resulting in damage to the car’s bumper. Without disagreeing with this fact, the defendant can raise an affirmative defense claiming that the plaintiff contributed to the accident. Defendant may allege that plaintiff slammed hard on the brakes of the car, thereby causing plaintiff’s car to rear end.

Affirmative defenses are mostly used in common law countries and can be raised in both civil and criminal cases. For example, in a civil suit, say an employee is suing an employer for gender discrimination. Without denying the allegations made, the employer may raise one or more affirmative civil defenses. Your employer may tell you that they have gender discrimination policies and procedures in place to ensure that you do not experience workplace harassment. Additionally, the employer may argue that the company has taken steps to address the harassment once it has been reported to the human resources department.

Affirmative defenses can also be raised by defendants in criminal proceedings. For example, suppose a woman is being tried for killing her husband. Without agreeing that she killed her husband, the woman can claim self-defense. She could claim that her husband attacked her and that she had to kill him to protect herself from harm. Self-defense is a common affirmative defense and is often used to argue for a defendant’s exoneration.

The effect of most affirmative defenses is to lessen—or entirely excuse—the defendant’s liability in a civil suit or culpability in a criminal case. Release or liability or culpability occurs even if a plaintiff is able to show that the facts supporting his or her case are true. If an affirmative defense is called for in a case, a judge typically instructs the jury on the specific theory of the defense at hand. The jury must then consider that defense when returning a verdict in the case.

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