§ 22.05 MODEL PENAL CODE

• Jurisdiction: North Carolina

§ 22.05. Model Penal Code

The Model Code recognizes a "choice of evils" defense. A person's conduct is justified if: (1) he 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) no legislative intent to exclude the conduct in such circumstances plainly exists.⁷² The determination of what constitutes a lesser harm is not left to the actor's evaluation, but rather to the judge or jury at trial. The Code does not resolve whether the balancing-of-harms should be determined by the judge, as a matter of law, or should be submitted to the jury for its evaluation.⁷³

This defense is much broader than the common law in various respects. First, the Code rejects the common law imminency requirement.

Second, a person does not automatically lose the defense because he was at fault in creating the necessitous situation. Instead, the Code provides that the defense is only unavailable if the actor is prosecuted for a crime of recklessness or negligence and he acted recklessly or negligently, as the case may be, in bringing about the emergency or in evaluating the necessity of his conduct.⁷⁴ For example, in the hypothetical discussed earlier in this chapter,⁷⁵ in which D recklessly started a fire that threatened to burn down a number of homes, D would be justified in purposely burning V's property, although he could be prosecuted for some crime of recklessness, such as criminal mischief,⁷⁶ due to his original reckless act.

Third, the Code provision is one of general applicability. All forms of necessity qualify—the defense is not limited to emergencies created by natural forces (a significant common law limitation), is not limited to physical harm (and, thus, for example, could permit the use of the defense to prevent economic harm to the actor or another), and, most controversially, may be employed in homicide prosecutions. The Commentary states that it would be "particularly unfortunate" to deny the defense in appropriate homicide cases; it contends that the sanctity of human life is promoted by a law that permits an actor to kill in order to save a larger number of lives.⁷⁷

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Notes:

^[72] . Model Penal Code § 3.02(1).

^[73] . American Law...