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The Necessity Defense


Model Penal Code, Section 3.02 (1) (a)

"Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that . . . the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged."

Butterfield v. Texas (Court of Criminal Appeals of Texas, 1958)

Butterfield had been out drinking with a friend. He became so drunk that his friend had to drive him to his apartment in the early hours of the morning. As Butterfield entered his bedroom, someone who had broken into his apartment whacked him on the head and he passed out. When Butterfield came to, he found himself lying in a pool of blood. He realized he needed immediate medical attention. He lived alone and had no phone. He got into his car and drove himself to the hospital. On his way to the hospital he caused a minor traffic accident, was arrested, and charged with drunk driving. He pleaded necessity, but the court rejected his defense.

Sansom v. Texas (Court of Criminal Appeals of Texas, 1965)

Sansom was a passenger in a friend's car. Sansom was drunk but his friend, who was driving, was even more drunk. A police officer noticed that the car was weaving from one side of the road to the other. He signalled them to stop. The driver ignored the signal. Sansom seized the wheel and drove the car to the side of the road and brought it to a stop. The police officer charged Sansom with drunk driving. The court found him guilty as charged. Why? "If appellant is found in a predicament and it is of his own doing, he may not by such conduct claim the benefit of a defense to which he is not entitled."

State v. Dorsey, 395 A 2d. 855 (New Hampshire, 1978)

Dorsey, along with several other protestors, was arrested during a mass occupation of the Seabrook Nuclear Power Plant in New Hampshire. The protestors were charged with criminal trespass. Dorsey invoked the necessity defense, arguing that the evil of nuclear power outweighed the harm caused by his trespass. If you were a member of the jury, would you vote, consonant with the necessity rule, to acquit Dorsey?

State v. Jackson, New Hampshire, 1902

New Hampshire has a statute making school attendance compulsory. Parents who keep their children out of school commit a criminal offense. Samuel Jackson's daughter was in very poor health: he feared for her life and did not dare send her to school. In fact, he never applied to the school board for a special exemption for his child or a dispensation. Did Samuel Jackson act criminally? The court appealed to the necessity defense: "A parent cannot be required to imperil the life of his child by delays incident to an application to the school board, before he can lawfully do what is apparently reasonably necessary for [his child's] protection."

The William Gray, 1810**

In 1810 the United States Congress imposed an embargo on the West Indies. While sailing from Alexandria to Boston, a heavy storm forced the William Gray to put in at the harbor of Antigua in the West Indies. The West Indian Governor ordered the captain to sell his cargo and only then allowed him to leave. Was the ship guilty of a criminal violation of the embargo statute? The court noted that the embargo statute did not contain an explicit exception for ships caught in stormy weather. Nonetheless the ship's action was subject to "the principle of necessity" as recognized "from time immemorial."

United States v. Aston, Massachusetts Circuit Court D, 1834 ***

The Merrimack, a sailing ship, set out in 1834 from Boston to Rio de Janeiro. She was leaky to begin with. Several days out of the harbor she met with a ferocious gale that further worsened her condition. The crew insisted on taking her back, but the captain turned a deaf ear. The crew eventually refused to go farther and the captain had no choice but to go back. In Boston the crew members were charged with mutiny. Invoking the idea of necessity, the court held that they should be acquitted if they reasonably thought the ship unseaworthy and a serious hazard to life.

** What if the captain of the William Gray knew before he left Alexandria that the weather would be foul and that if caught in a storm, his ship would likely have to put in at the West Indies?

*** What if the Merrimack had been a naval vessel steaming toward some distant battleground? Ought a court still be willing to put the decision in the hands of the crew to turn the ship back because it seems unlikely to survive the next. - from Katz, Bad Acts.






Prepared: February 1, 2006 - 5:02:29 PM
Edited and Updated, February 2, 2006


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