A defense asserted by a criminal or civil defendant

that he or she had no choice but to break the law.

The necessity defense has long been recog-

nized as COMMON LAW and has also been made

part of most states’ statutory law. Although no

federal statute acknowledges the defense, the

Supreme Court has recognized it as part of the common law. The rationale behind the necessity

defense is that sometimes, in a particular situa-

tion, a technical breach of the law is more

advantageous to society than the consequence of

strict adherence to the law. The defense is often

used successfully in cases that involve a TRES-

PASS on property to save a person’s life or prop-

erty. It also has been used, with varying degrees

of success, in cases involving more complex


Almost all common-law and statutory defi-

nitions of the necessity defense include the fol-

lowing elements: (1) the defendant acted to

avoid a significant risk of harm; (2) no adequate

lawful means could have been used to escape the

harm; and (3) the harm avoided was greater

than that caused by breaking the law. Some

jurisdictions require in addition that the harm

must have been imminent and that the action

taken must have been reasonably expected to

avoid the imminent danger. All these elements

mirror the principles on which the defense of

necessity was founded: first, that the highest

social value is not always achieved by blind

adherence to the law; second, that it is unjust to

punish those who technically violate the letter of

the law when they are acting to promote or

achieve a higher social value than would be

served by strict adherence to the law; and third,

that it is in society’s best interest to promote the

greatest good and to encourage people to seek to

achieve the greatest good, even if doing so neces-

sitates a technical breach of the law.

The defense of necessity is considered a jus-

tification defense, as compared with an excuse

defense such as duress. An action that is harmful

but praiseworthy is justified, whereas an action

that is harmful but ought to be forgiven may be

excused. Rather than focusing on the actor’s

state of mind, as would be done with an excuse

defense, the court with a necessity defense

focuses on the value of the act.No court has ever

accepted a defense of necessity to justify killing a

person to protect property.

Most states that have codified the necessity

defense make it available only if the defendant’s

value choice has not been specifically contra-

dicted by the state legislature. For example, in

1993 the Massachusetts Supreme Judicial Court

rejected the necessity defense of two people who

were prosecuted for operating a needle-

exchange program that was intended to reduce

the transmission of AIDS through the sharing of

contaminated hypodermic needles (Massachu-

setts v. Leno, 415 Mass. 835, 616 N.E.2d 453).

Their actions violated a state law prohibiting the

distribution of hypodermic needles without a

physician’s prescription. In rejecting the defense,

the court held that the situation posed no clear

and imminent danger. The court reasoned that

citizens who disagree with the legislature’s pol-

icy are not without remedy, as they can seek to

have the law changed through popular initiative.

The necessity defense has been used with

sporadic and very limited success in the area of

civil disobedience since the 1970s. The most

common circumstances involve public protests


NUCLEAR WEAPONS. Virtually all abortion pro-

testers who have tried to avail themselves of the

defense have lost. The courts have reasoned that

because the right to an abortion is constitution-

ally protected, it cannot simultaneously be a

legally recognized harm justifying illegal action.

In these cases the courts have also denied the

defense on the basis that the criminal act of

protest would not stop abortions from occur-

ring; that the harm caused by the act was greater

than the harm of abortion; and that legal means

of protest, such as demonstrating outside of the

clinic rather than entering the clinic or trespass-

ing on its property, were available. Consequently,

according to the courts, there was no necessity

for the protesters to break the law. In the vast

majority of cases in which protesters, trespassing

on property, blocked the entrance to nuclear

plants, the courts have denied the necessity

defense on the grounds that there was no immi-

nent danger and that the trespassing protesters

could not reasonably have believed that their

actions would halt the manufacture of nuclear

materials (see, e.g., State v. Marley, 54 Haw. 450,

509 P.2d 1095 [Haw. 1973]). The defense has also

been denied in civil disobedience cases involving

protests against U.S. policy abroad, the homeless

problem, lack of funding for AIDS research,

harmful logging practices, prison conditions,

and human and ANIMAL RIGHTS violations.

Necessity has been used successfully by

inmates who escape from prison under certain

circumstances. In Spakes v. State, 913 S.W.2d 597

(Tex. Crim. App. 1996), the highest criminal

court in Texas allowed the jury to be instructed

on the necessity defense before deliberating the

verdict for an inmate whose three cellmates had

planned an escape and threatened to slit his

throat if he did not accompany them. The defen-

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