§ 22.01 BASIC NATURE OF THE DEFENSE

• Jurisdiction: United States

§ 22.01. Basic Nature of the Defense¹

This chapter considers the defense of necessity, also variously called the "lesser evil" or "choice of evils" defense. Unfortunately, "[t]he origins and present status of the defense . . . are shrouded in uncertainty and confusion."² Indeed, at the foundational level, there is uncertainty whether the defense should be classified as a justification defense, an excuse, or as having characteristics of both. Also, this defense is often confused with, or is treated as part of, a broader defense encompassing the defense of duress. The excuse characteristics of "necessity" (to the extent that they might exist) and the relationship of necessity to the defense of duress, are considered in the next chapter.³ This chapter considers only necessity as a justification defense.

The defense of necessity can arise in a myriad of circumstances, but is rarely successful. It is most often invoked successfully when an actor encounters the following dilemma: As a result of some natural (non-human) force or condition, he must choose between violating a relatively minor offense, on the one hand, and suffering (or allowing others to suffer) substantial harm to person or property, on the other hand. For example, the necessity defense applies if a seaman violates an embargo by putting into a foreign port due to dangerous and unforeseeable weather conditions,⁴ a person drives on a suspended license in order to take a loved one to the hospital in a life-endangering emergency,⁵ or a motorist exceeds the speed limit in order to pass another car and move to the right lane, so that an emergency vehicle can pass.⁶

Not all litigated necessity cases fit the preceding, relatively easy, paradigm. For example, courts have been required to determine whether it is justifiable for a homeless person to violate a city ordinance banning sleeping in designated public areas or trespassing on private property,⁷ or for a person to do any of the following: possess marijuana for use to reduce the effects of a serious disease;⁸ distribute clean hypodermic needles to drug addicts in an effort to combat the spread of AIDS;⁹ escape confinement because of intolerable prison conditions;¹⁰ possess a firearm (otherwise in violation of law) because of an unlawful imminent threat to life;¹¹ forge a check to pay for food out of economic necessity;¹² kidnap a person in order to remove her from the influence of a "religious cult";¹³ drive an automobile in an intoxicated condition in order to escape an angry, threatening abusive husband;¹⁴ or kill an innocent person in order to save several innocent lives.¹⁵ Occasionally, too, the defense is raised when a person commits civil disobedience in order to signal his opposition to a...