Chapter
12
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Chapter
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NECESSITY
[A] Nature
of the Defense – Generally speaking, "necessity" is a residual
justification defense, although it shares some characteristics with excuse
defenses as well. It is a defense of last resort as it legitimizes technically
illegal conduct that common sense, principles of justice, and/or utilitarian
concerns suggest is justifiable, but which is not specifically addressed by
any other recognized justification defense.
[B] Requirements of the Defense – Approximately one-half of states now statutorily recognize a necessity defense. Generally speaking, a person is justified in violating a criminal law if the following six conditions are met:
| 1.) | The defendant must be faced with a clear and imminent danger. | |
| 2.) | There must be a direct causal relationship between the action and the harm to be averted. | |
| 3.) | There must be no effective legal way to avert the harm. | |
| 4.) | The harm that the defendant will cause by violating the law must be less serious than the harm he seeks to avoid. The defendant’s actions are evaluated in terms of the harm that was reasonably foreseeable at the time, rather than the harm that actually occurred. | |
| 5.) | There must be no legislative intent to penalize such conduct under the specific circumstances. | |
| 6.) | The defendant must come to the situation with "clean" hands, i.e., he must not have wrongfully placed himself in a situation in which he would be forced to commit the criminal conduct. |
[C] Limitations on the rule – The availability of the necessity defense may be further limited to:
| 1.) | emergencies created by natural forces; | |
| 2.) | non-homicide cases [see Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884)] | |
| 3.) | protection of persons and property only, excluding for example, the protection of reputation or economic interests. |
"Civil disobedience" is a nonviolent act, publicly performed and deliberately unlawful, for the purpose of protesting a law, government policy, or actions of a private body whose conduct has serious public consequences. The necessity defense rarely arises in cases of direct civil disobedience, where the goal generally is to have the protested law declared unconstitutional.
Indirect civil disobedience involves violation of a law that is not the object of the protest, e.g., violating trespass statutes to protest construction of a nuclear power plant or the performance of abortions at a clinic. While protesters often advocate that they should be entitled to a "political necessity" defense, courts consistently have held that necessity is not a defense to indirect civil disobedience.
The necessity defense is broader under the Code than under common law and many non-Code-based statutes. Under the Code, otherwise unlawful conduct is justified if:
| 1.) | the defendant believes that his conduct is necessary to avoid harm to himself or another; | |
| 2.) | the harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct; and | |
| 3.) | there is no legislative intent to exclude the conduct in such circumstances. [MPC 3.02(1)] |
Unlike common law, the Code does not require that the harm be imminent or that the defendant approached the situation with "clean hands." Furthermore, the common law limitations regarding natural forces, homicide cases, and property and personal are inapplicable to the Code’s necessity defense.
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Chapter
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