Overview:

A necessity (or “choice of evils”) defense arises when an individual must choose between committing a lesser harm or allowing a greater harm to occur.  A classic example of necessity is preemptively burning down a house in order to prevent a wildfire from spreading.

Necessity is a “defense of last resort;” it justifies otherwise illegal conduct based on principles of justice, utility, or common sense.

Some jurisdictions limit necessity to circumstances arising from a “non-human condition” (like a natural disaster), while disallowing it in man-made cases (such as a runaway truck). Some jurisdictions have also limited the availability of necessity to cases involving the protection of persons or property.

Although most jurisdictions do not precisely define necessity, it is generally recognized if the following six conditions are met:

1)   There must be a clear and imminent danger.

2)   The actor must believe that his conduct will effectively diminish the danger, and this belief must be reasonable.

3)   There must not be an effective legal recourse.

4)   The harm the defendant reasonably foresees causing must be of a lesser degree than the harm the defendant seeks to avoid. The defendant’s analysis and choice need not be objectively correct, as long as they are rational and correct based on what the defendant knew and could reasonably foresee. For example, with the wildfire hypothetical above, suppose the house that the defendant burned down was actually occupied by several people. If the defendant had no reasonable way of knowing that the house was occupied, then the fact that those individuals died would not be considered in the analysis.

5)   The legislature must not have already weighed the competing values and decided contrary to the defendant.

6)   The defendant must not have substantially contributed to the initial threat, or come to the harm. In other words, a necessity defense is not available to someone who knowingly puts himself in danger without cause, and then must break the law in order to avoid the danger.

Duress differs from necessity because it applies in cases where the threat is human. Although jurisdictions vary, a duress defense is generally recognized if the following five elements are met:

1)   An individual threatened to use deadly force against the actor or a third person (at common law a third person target must a member of the actor’s family) unless the actor committed the offense;

2)   The actor reasonably believed this threat to be genuine;

3)   The threat was imminent at the time the actor committed the criminal offense;

4)   Committing the criminal offense was the only reasonable method of escape; and

5)   The actor is not responsible for creating or instigating the threat

A successful duress defense means that the coercing party will be considered responsible for the actor’s conduct, and may be criminally liable. At common law and as expressly established by statute in 17 states today, duress is entirely unavailable in homicide cases. Other states allow an imperfect duress defense in homicide cases, which reduces the charge to manslaughter. Jurisdictions are split on whether a duress defense should be allowed in a felony-murder context.

Duress defenses are sometimes raised by prisoners who attempt to escape from intolerable prison conditions. Once a prisoner has escaped and the cause of the duress or necessity has abated, most courts require the escaped prisoner to surrender himself to custody or forsake the defense.

Some scholars have argued for a “situational duress” defense for duress arising from a non-human source (e.g., Dudley and Stephens).

Commentators have also suggested expanding the duress defense to cases that lack direct threats, but which involve individuals who have been brainwashed, or who were raised into a violent or criminal community.  These arguments suggest that some people are forced by circumstance to commit crimes, and are in some sense unable to reason through alternative options. These proposals have been criticized as undermining the assumptions underlying the voluntary act requirement. Recall that the voluntary act requirement restricts punishment to those who choose to act criminally, and presupposes that people are capable of making choices (see Unit 7).

How should the law handle a battered spouse who commits a criminal offense at the behest of an abusive partner? Such cases often fail to meet the elements of duress – the battering spouse’s demand can be menacing without communicating an explicit threat, for instance, or a prosecutor might argue that the battered spouse is at fault by staying with the abusive spouse. Nevertheless, some courts have allowed the use of battered spouse testimony to help prove that the battered spouse feared an imminent threat, that such a fear was reasonable, and that a “learned helplessness” prevented the spouse from escaping.