Keith Mack
The necessity defense is a legal concept that can be used as a defense for criminal liability, where the defendant argues that their conduct or actions were necessary to prevent a greater harm or evil. This defense is often used as a last resort when individuals intentionally break the law because they believe it is urgently necessary to protect others or themselves from harm. While it is recognized in most common law and civil law jurisdictions, it is only applicable under limited circumstances and specific requirements must be met.
| Characteristics | Values |
|---|---|
| Criminal Law | Defendants can avoid criminal liability by appealing to a "balancing of evils" |
| Defendants must affirmatively show evidence that their actions were necessary to prevent a greater harm | |
| Defendants must not have contributed to the emergency | |
| Defendants must not have caused the threat that they were later seeking to avoid | |
| Defendants must not have had any other realistic options available to them at the time the criminal act was committed | |
| The harm threatened and the harm caused must be reasonably proportionate | |
| The defendant must not have been at fault in creating the situation that made it necessary to commit the crime | |
| The criminal act must be minor and the potential harm must be significant |
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What You'll Learn
Necessity as a defence in criminal law
To successfully use the defence of necessity, an individual must reasonably believe that there is an imminent and actual threat that requires immediate action to prevent a greater harm. The belief in the imminent, actual, and greater threat must be reasonable to the average individual, not just the defendant. Additionally, the defendant must not have contributed to the threat they were later seeking to avoid. Most jurisdictions also require that the harm threatened and the harm caused be proportionate, with the harm caused being a reasonably proportionate response to the degree of harm threatened.
Necessity as a defence is usually applied in situations where there is an immediate necessity to act to prevent a greater harm. For example, in the case of a school bus driver who loses control of the brakes while approaching a steep turn on a mountain road, the driver's criminal act of destroying the barn and any property inside will likely be considered less harmful than the potential loss of lives if the bus careens over the road. However, if the bus driver had other alternatives, such as driving the bus into an area crowded with people, causing more harm than preventing it, the defence of necessity may not be applicable.
While most common law and civil law jurisdictions recognize the defence of necessity, it is only allowed under limited circumstances. For example, in the United States, the Kansas Supreme Court ruled that the necessity defence cannot be used when the harm the defendant claims to avoid is legal, while the action undertaken to prevent it is illegal. Similarly, in Canada, necessity is recognized as a defence for crimes committed in urgent situations of clear and imminent peril, provided the accused has no safe or legal way out.
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Limitations of the defence
The necessity defence is a controversial defence strategy in common law, and its application is limited by several factors. Firstly, the defendant must prove that they reasonably believed there was an imminent and actual threat that required immediate action. The belief in the threat must be reasonable to the average individual, not just the defendant. Secondly, the defendant must show that they did not contribute to or cause the threat they were seeking to avoid. For example, if a bus driver was aware that the brakes on their bus were failing but chose not to have them repaired, they would have difficulty claiming the defence of necessity as their negligence contributed to the threat.
Thirdly, the defence of necessity is only applicable when there are no other realistic options to prevent the greater harm. This does not mean that absolutely no alternative can exist, as courts have acknowledged that refraining from criminal action is not always a realistic option. However, if there are other reasonable alternatives available, the necessity defence cannot be used to justify illegal conduct. For instance, in the case of a drunk driver claiming necessity to escape a kidnapper, the defence would not be recognised if they drove further than necessary or had other reasonable alternatives to escape.
Additionally, some jurisdictions, such as Canada, apply a test of proportionality, where the defence is only allowed if the degree of harm caused was reasonably proportionate to the degree of harm threatened. This involves a legal cost-benefit analysis. Furthermore, the defence may not be used when the harm the defendant sought to avoid was legal, while the action undertaken to prevent it was illegal. For example, in the case of Scott Roeder's assassination of an abortion provider, the judge refused to allow a plea of necessity, as the harm caused (the assassination) was illegal, despite the defendant's claim of preventing a greater evil.
Lastly, the defence of necessity has specific requirements in different types of law. For example, in English law, there is no corresponding defence for murder, except for a few statutory exemptions and medical cases. In tort law, there are two categories of the necessity defence: public necessity and private necessity. These limitations outline the circumstances under which the necessity defence can be successfully employed, highlighting the need for a careful evaluation of each case.
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![On the Necessity for Defenses on Coast and at Sea : Speech of Hon. Samuel S. Cox, of New York, in the House of Representatives, Monday, June 30, 1884 1884 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Duress vs Necessity
In criminal law, necessity and duress are two similar but distinct defenses that can be used to justify an unlawful act. Both defenses acknowledge that breaking the law is sometimes the only way to prevent a greater harm or escape a dangerous situation. However, there are important differences between the two.
Duress typically involves a threat or use of physical force by another person, which compels the defendant to commit a crime out of fear for their safety or that of their loved ones. The threat must be imminent and serious, such as a threat to bodily harm or death, and the defendant must have no reasonable alternative to avoid the danger other than committing the unlawful act. In other words, duress focuses on the immediate threat posed by another person.
Necessity, on the other hand, deals with situational or natural pressures that compel an individual to break the law. It is about choosing the lesser of two evils to prevent a greater harm. For example, a person may break into a building to escape a fire or ignore traffic rules to rush a dying patient to the hospital. The key distinction is that necessity involves a choice between two evils, whereas duress involves a threat that leaves no alternative but to commit a crime.
To successfully invoke the necessity defense, the defendant must prove that they reasonably believed that their illegal conduct was necessary to prevent a greater harm and that a reasonable person would have made the same choice under the circumstances. Additionally, the defendant must not have substantially contributed to the emergency and the harm caused by their actions must not outweigh the harm prevented. Most jurisdictions follow similar elements, but some also include a proportionality element, where the harm caused must be reasonably proportionate to the harm threatened.
In summary, while both duress and necessity defenses acknowledge the context and human condition under pressure, they differ in their focus. Duress centers on threats from other people, while necessity focuses on dire situations where breaking the law is the only option to prevent a greater harm.
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The 'balancing of evils'
The necessity defense, also known as the "choice of evils" or "lesser-evils" defense, is a legal argument that an individual's criminal conduct was justified because it prevented a greater harm from occurring. This defense requires the defendant to prove that they faced an imminent and actual threat that required immediate action, and that a reasonable person would also believe that the illegal conduct was necessary in the circumstances.
The necessity defense is based on the idea of balancing harms and choosing the lesser evil. Defendants arguing necessity claim that their actions, while illegal, were necessary to prevent a greater harm from occurring. For example, a person who drives drunk to get away from a kidnapper may argue that their illegal conduct was necessary to avoid a greater harm, such as serious injury or death. Similarly, in the case of State v. Cole, a defendant was convicted of driving with a suspended license after travelling to a telephone to call for help for his pregnant wife. The appellate court ruled that the trial court should have allowed the defendant to present a necessity defense, recognizing that circumstances beyond one's control can sometimes force an individual to engage in illegal conduct.
However, the necessity defense has limitations and is not always successful. For example, in the case of R v Latimer, the court applied a test of proportionality, where the defense is only allowed if the degree of harm caused was reasonably proportionate to the degree of harm threatened. Additionally, the necessity defense is typically not available to defendants who kill an innocent person, regardless of the circumstances. Furthermore, some crimes, such as those motivated by opposition to abortion, cannot be justified with a necessity defense.
To establish a necessity defense, defendants must generally prove that there was an imminent danger, the situation required immediate action, they did not contribute to the emergency, and a reasonable person would believe the illegal conduct was necessary. While the specifics of the defense may vary by jurisdiction, the underlying principle of balancing harms and choosing the lesser evil remains consistent.
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Necessity in civil law
The necessity defense is a defense against liability for unlawful activity where the conduct cannot be avoided and is justified because it will prevent a more serious occurrence of harm. This defense is very similar to duress, with the difference being that duress is usually caused by the actions of people, while necessity is caused by other circumstances or forces. In tort law, there are two categories of the necessity defense: public necessity and private necessity.
In English law, the defense of necessity recognizes that there may be situations of overwhelming urgency where a person must be allowed to respond by breaking the law. However, there have been very few successful cases of this defense, and it generally applies to minor crimes. For example, in the Winooski 44 case, activists were acquitted of charges after using a necessity defense.
To successfully use the necessity defense, an individual must reasonably believe that there is an imminent and actual threat requiring immediate action. The belief in the threat must be reasonable to the average individual and not just the individual who committed the act. Additionally, the defendant must not have contributed to the emergency they were seeking to avoid.
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Frequently asked questions
The necessity defense is a legal argument that a person's conduct, while illegal, was necessary to prevent a greater harm.
The necessity defense can be used when there is an imminent and actual threat that requires immediate action and no other legal alternatives are available.
Examples of the necessity defense include breaking windows to escape a fire, commandeering a vehicle to serve as an emergency ambulance, and ignoring traffic rules while rushing a dying patient to a hospital.
The necessity defense may not be used when the defendant caused or contributed to the situation that led to the criminal act, or if the harm caused by the defendant's actions is not proportionate to the harm they sought to prevent.
