Necessity Defense: Definition, Laws & Examples

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  • 0:03 Drastic Times
  • 0:37 Elements of the Crime
  • 1:47 Defenses to Crime
  • 2:37 Necessity Defense
  • 4:53 Lesson Summary
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Lesson Transcript
Instructor: Kenneth Poortvliet
In an emergency situation, the law allows a person to engage in conduct that would otherwise be prohibited. In this lesson, we will learn the meaning of the defense of necessity and under what circumstances it applies.

Drastic Times

Stan threw the mooring lines to the officer who secured the Miss Audrey, a 25-foot cabin cruiser named after Stan's neighbor's grandchild. Stan's family deboarded, exhausted and still shaken after being stuck on their roof for six hours. Stan jumped from the roof and swam to the boat. Unfortunately Stan wasn't much of a skipper as he gouged a hole in the boat during the rescue, and it soon sunk. Two months later, a judge found Stan guilty of destruction of property and the unauthorized use of a watercraft. Does this seem right?

Elements of the Crime

To convict someone of a crime, the prosecutor must prove that the defendant committed the elements, or the factual requirements imposed by law, of the crime. Like ingredients, there can be no conviction if just one is missing. For example, the crime of capital murder requires 1) the unlawful killing of another human 2) with malice aforethought. If Toby shot Dori dead, is it murder? To find out, we need to apply these elements.

The first element was met. Dori was a human, but was the killing unlawful? A lawful killing is one allowed by law, such as a capital punishment or an enemy combatant in a time of war. We'll just say it was neither. The second element is ''malice aforethought,'' which means with premeditation and the intent to kill. Thus, you have to look at the circumstances of why Toby shot Dori. Was it a gun cleaning accident or a premeditated act? Let's say Toby shot her, but it was because she cheated on him. It's not premeditated, so it's not first degree murder, but it might be some other unlawful killing. One reason the law requires all elements of a crime to be proven is so that the conviction fits what happened.

Defenses to Crime

What if the person's conduct technically fits the elements, but convicting them under the circumstances would be unjust? For example, what if Toby came across Dori strangling his wife and then shot Dori? We know a murder charge is likely inappropriate. The elements of manslaughter are: 1) the unlawful killing of another human 2) with the intent to commit bodily harm. Toby killed Dori with the intent to harm her, so does it seem fair that Toby be charged with manslaughter?

The law allows for affirmative defenses, which are legal defenses that the defendant has to assert, and if successful, become a complete defense to the charge. In Toby's case, he can claim ''the defense of others'' as his reason for shooting Dori. He would have to prove to the court that he felt the life of someone else was in imminent harm of death or serious bodily injury. This way his act would be justified.

Necessity Defense

Similar to self-defense or defense of others as a defense to assault or an unlawful homicide, necessity is a defense to crimes against property. Just as there are elements to convict someone of a crime, there are elements to the defense of necessity.

They are:

  • The defendant must reasonably believe an actual and imminent threat of death or serious bodily injury exists.
  • The threat perceived by the defendant must be greater than the harm caused by the defendant's actions.
  • There must be no other less harmful reasonable alternative to the action.
  • The defendant must not have caused the threat to begin with.

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