View source for Necessity (criminal law)

{{Short description|Criminal defense}}
{{About|the concept in criminal law
|the concept in tort|Necessity (tort)
|that in the law of war|Military necessity
|that in constitutional and international law|Doctrine of necessity
|logical meanings|Necessary (disambiguation)|and|Modal logic}}
{{Criminal defenses}}

In the [[criminal law]] of many nations, '''necessity''' may be either a possible [[Justification (jurisprudence)|justification]] or an exculpation for breaking the [[law]]. [[Defendant]]s seeking to rely on this [[defense (legal)|defense]] argue that they should not be held [[liable]] for their [[action (philosophy)|actions]] as a [[crime]] because their conduct was ''necessary'' to prevent some greater harm and when that conduct is not excused under some other more specific provision of law such as [[Self-defense|self defense]]. As a matter of political expediency, states usually allow some classes of person to be excused from liability when they are engaged in socially useful functions but intentionally cause injury, loss or damage. 

For example, drunk drivers might contend that they drove their car to get away from being [[kidnapping|kidnapped]] (cf. ''[[North by Northwest#Plot|North by Northwest]]'').  Most [[common law]] and [[civil law (legal system)|civil law]] [[jurisdiction]]s recognize this defense, but only under limited circumstances. Generally, the defendant must affirmatively show (i.e., introduce some evidence) that (a) the harm they sought to avoid outweighs the danger of the prohibited conduct they are charged with; (b) they had no reasonable alternative; (c) they ceased to engage in the prohibited conduct as soon as the danger passed; and (d) they themselves did not create the danger they sought to avoid.  Thus, with the "drunk driver" example cited above, the necessity defense will not be recognized if the defendant drove further than was reasonably necessary to get away from the kidnapper, or if some other reasonable alternative was available to them.

For another example, the [[fire service]]s and other [[civil defence]] [[organization]]s have a general duty to keep the [[community]] safe from harm. If a fire or flood is threatening to spread out of control, it may be reasonably necessary to destroy other property to form a [[fire break]], or to trespass on land to throw up mounds of earth to prevent the water from spreading. 

These examples have the common feature of individuals intentionally breaking the law because they believe it to be urgently necessary to protect others from harm, but some states distinguish between a response to a crisis arising from an entirely natural cause (an inanimate force of nature), e.g. a fire from a lightning strike or rain from a storm, and a response to an entirely human crisis. Thus, [[parent]]s who lack the financial means to feed their [[child]]ren cannot use necessity as a defense if they steal food. The existence of welfare benefits and strategies other than self-help defeat the claim of an urgent necessity that cannot be avoided in any way other than by breaking the law. 

Further, some states apply a test of proportionality, where the defense would only be allowed where the degree of harm actually caused was a reasonably proportionate response to the degree of harm threatened. This is a legal form of [[cost–benefit analysis]].

==Specific jurisdictions==

===Canada===
{{main|Necessity in Canadian law}}

In Canada, necessity is recognized as a defence for crimes committed in urgent situations of clear and imminent peril in which the accused has no safe or legal way out of the situation. 

Three requirements for defence of necessity:
# Urgent situation of imminent peril or danger 
# No reasonable legal alternative
# Proportionality between harm inflicted and harm avoided

The first and second element are evaluated on the modified objective standard. The third element is evaluated on a purely objective standard: [[R v Latimer]], 2001 SCC 1.

===Denmark and Norway===
Emergency law/right (''nødret'', ''nødrett'') is the equivalent of necessity in Denmark and Norway.<ref>[https://www.retsinformation.dk/Forms/R0710.aspx?id=113401 Straffeloven] på [[Retsinformation]]</ref><ref>{{Cite web|url=http://www.lovdata.no/all/hl-20050520-028.html#17|title=Straffeloven av 2005 § 17}}</ref> It is considered related to but separate from self-defence. Common legal examples of necessity includes: breaking windows and other objects in order to escape a fire, commandeering a vehicle to serve as an emergency ambulance, ignoring traffic rules while rushing a dying patient to a hospital, and even killing a person who poses an immediate threat to several other people not including yourself. In the last case self-defense laws are not enough, but the case is covered by ''nødret''. ''Nødret'' can only be invoked though when no other option is available.
===English law ===
{{Main|Necessity in English law}}
Except for a few statutory exemptions and in some medical cases<ref>See Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147</ref> there is no corresponding defense in [[Necessity in English law#History|English law]] for murder.<ref>See [[R v Dudley and Stephens]] [1884] 14 QBD 273 and R v Howe [1987] 1 AC 417</ref>

===Singapore===
Necessity is a defence per the Penal Code.<ref>[http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=85fe891c-9489-47a0-a0c2-15a8a9fb92c9;page=0;query=DocId%3A%22025e7646-947b-462c-b557-60aa55dc7b42%22%20Status%3Ainforce%20Depth%3A0;rec=0#pr81-he-. Section 81 of the Penal Code of Singapore.]</ref>
This requires lack of criminal intent, good faith (due care and attention<ref>[http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=4933180d-0e2b-4808-bcb8-1e276b9522b4;page=0;query=DocId%3A%22025e7646-947b-462c-b557-60aa55dc7b42%22%20Status%3Ainforce%20Depth%3A0;rec=0#pr52-he-. Section 52 of the Penal Code of Singapore.]</ref>), and the goal of preventing harm. The harm must be sufficiently serious and imminent to justify or excuse the act.

===Switzerland===
{{main|de:Gerichtsverfahren zu Klimaprotesten in der Schweiz}}
In two separate cases in 2020, climate activists were not convicted of trespassing and damaging property after holding unauthorized demonstrations in [[Crédit Suisse]] branches due to pleading a necessity defense in the face of a [[global warming|climate emergency]].<ref>{{cite news |last1=Stucki |first1=Saskia |title=In Defence of Green Civil Disobedience |url=https://verfassungsblog.de/in-defence-of-green-civil-disobedience/ |access-date=31 October 2020 |work=Verfassungsblog |date=30 October 2020}}</ref><ref>{{cite news |title=Credit Suisse unterliegt - Genfer Kantonsgericht gibt Klimaaktivist Recht |url=https://www.srf.ch/news/schweiz/credit-suisse-unterliegt-genfer-kantonsgericht-gibt-klimaaktivist-recht |access-date=31 October 2020 |work=Schweizer Radio und Fernsehen (SRF) |date=14 October 2020 |language=de}}</ref>
===Taiwan ===
Necessity is a possible defense per the Criminal Code<ref>[http://law.moj.gov.tw/Eng/LawClass/LawSearchNo.aspx?PC=C0000001&DF=&SNo=24 Article 24 of the Criminal Code of the Republic of China].</ref> and the Administrative Penalty Act.<ref>[http://law.moj.gov.tw/Eng/LawClass/LawSearchNo.aspx?PC=A0030210&DF=&SNo=13 Article 13 of Administrative Penalty Act].</ref>

===United States===
Necessity as a defense to criminal acts conducted to meet political ends was rejected in the case of ''[[United States v. Schoon]]''.<ref>{{citation|title=The demise of the political necessity defense: indirect civil disobedience and United States v. Schoon|year=1993|author=Cavallaro, James L. Jr. |journal=California Law Review|volume=81 |issue=1 |pages=351–385 |publisher=University of California Press|doi=10.2307/3480788|jstor=3480788|issn=0008-1221|url=https://scholarship.law.berkeley.edu/californialawreview/vol81/iss1/6 |url-access=subscription}}</ref> In that case, 30 people, including appellants, gained admittance to the [[Internal Revenue Service|IRS]] office in Tucson, where they chanted "keep America's tax dollars out of El Salvador", splashed [[artificial blood|simulated blood]] on the counters, walls, and carpeting, and generally obstructed the office's operation. The court ruled that the elements of necessity did not exist in this case.<ref>{{cite court|litigants=U.S. v. Schoon|reporter=F2d|vol=939|opinion=826|date=July 29, 1991|url=http://openjurist.org/939/f2d/826/united-states-v-d-schoon}}</ref>

====In specific states====
{{Also|Necessity defense (New York)}}
Several states have established legal positions on the necessity defense, including [[Law of Kansas|Kansas]], [[Law of New York (state)|New York]] and [[Law of Vermont|Vermont]].

The [[Kansas Supreme Court]] has ruled<ref>[http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2014/20141024/104520.pdf State v. Roeder], 300 Kan. 901, 336 P.3d 831 (2014) </ref> that the necessity defense may not be used when the harm the defendant claims to be avoiding through his actions was legal, while the action undertaken to prevent it was illegal.<ref>[http://www.cnn.com/2009/CRIME/12/22/kansas.doctor.killed/index.html Anti-abortion activist can't use 'necessity defense' in slaying ].</ref> This question became an issue in the 2010 trial of [[Scott Roeder]] for the [[assassination of George Tiller|assassination]] of notorious [[late termination of pregnancy|late-term abortion]] provider [[George Tiller]].<ref name=indep>[https://www.independent.co.uk/opinion/commentators/jacob-appel-allowing-a-manslaughter-defence-brings-risk-of-anarchy-1866128.html Jacob Appel: Allowing a manslaughter defence brings risk of anarchy], ''The Independent'', Jan. 13, 2010.</ref> Judge Warren Wilbert refused to allow the defense to present a plea of necessity, but did allow them to present a case for [[voluntary manslaughter]] on the grounds that the defendant sincerely believed that he was committing a smaller crime to prevent a greater evil.<ref name=indep />

The [[Winooski 44]] case in [[Courts of Vermont|Vermont]] resulted in activists being acquitted of charges after using a necessity defense.

== In religious law ==
=== Judaism ===
In Judaism, the principle of ''[[pikuach nefesh]]'' allows any law to be broken to save a life, except laws against murder, adultery/incest and blasphemy/idolatry.
=== Catholicism ===
{{See also|Canon 1324}}

==See also==
*[[Competing harms]]
*[[Opinio juris sive necessitatis]]

==References==
*Christie, ''The Defense of Necessity Considered from the Legal and Moral Points of View'', (1999) Vol. 48 Duke Law Journal, 975.
*Fuller, Lon L. ''The Case of the Speluncean Explorers'', (1949) Vol. 62, No. 4 Harvard Law Review [http://www.nullapoena.de/stud/explorers.html The Case of the Speluncean Explorers] and ''The Case of the Speluncean Explorers: A Fiftieth Anniversary Symposium'',  (1999) 12 Harvard Law Review 1834.
*Herman, ''United States v. Oakland Cannabis Buyer's Cooperative. Whatever Happened to Federalism?'' (2002) Vol. 95, No. 1 The Journal of Criminal Law and Criminology, 121.
*Travis, M. ''The Compulsion Element in a Defence of Necessity'' (2000) [https://web.archive.org/web/20040718053121/http://homepages.ihug.co.nz/~ttpbst/me/writing/compulsion.htm Compulsion & Necessity]
<references/>

{{Authority control}}
[[Category:Criminal defenses]]
[[Category:Legal doctrines and principles]]