Q: can I use rsmo 565.090.2(1)(6) as defense if it wasn't charged
I was charged with misd C assault 3rd for threatening someone who refused to leave my property, and I could back up a claim that they have been harassing me for a while, however the police and prosecutor have refused to file any charges against them. Can I still claim that I am the victim of harassment and that 565.090.2(1)(6) "such person's response to the act is one of a person of average sensibilities considering the age of such person" should cover my actions?
A: Potentially... though you probably need to get an attorney. It really depends on the circumstances, you might be able to win at trial, but maybe not. You would have to prove that you were being harassed (which you don't have to have them charge, but it would help). If you were not being harassed, then you are probably out of luck. There have also been some cases that have discussed what is an allowable response or not. The statute doesn't really tell you everything. Get an attorney, that will be the best thing you can do for yourself.
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