The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil

Edward B. Arnolds, Norman F. Garland, The Defense of Necessity in Criminal Law: The
Right to Choose the Lesser Evil, 65 J. Crim. L.& Criminology 289 (1974)

The Study Draft of a federal criminal code contained Section 608 entitled "Conduct which
Avoids Greater Harm." The Commission on Reform of Federal Criminal Laws stated in the
Comments that this section embodied the doctrine of necessity. The Commission codified the
defense because "it makes no sense to punish persons who have acted to avoid great harm,
even if they have 'broken a law' to do so." The provision was to include the obvious cases
such as speeding in order to reach a hospital in an emergency or destroying a house to stop a
forest fire. The Commission also intended that Section 608 include extreme cases, such as
killing some persons to save a greater number.

The final Proposed Code deleted the codified necessity defense and added Section 601 which
simply stated, "Except as otherwise provided, justification or excuse under this chapter is a
defense." "The Commissioners explained that they did not want to "freeze the rules as they
now exist." They added that Section 601 did not include the "Choice of Evils" rule (that
emergency measures to avoid greater injury may be justified) because "even the best statutory
formulations... is a potential source of unwarranted difficulty in ordinary cases. Although
some commissioners felt that the Code should explicitly recognize that avoidance of harm is
a privilege of the citizen, the majority concluded that codification, as opposed to case-by-case
prosecution discretion, is premature.

The Doctrine of Necessity and Medical Treatment

- Bernadette McSherry [1989] 1 QB 290 at 297.
In this article we discusses about the necessity to be available to a charge of homicide. There
are good reasons for circumscribing such a defense. The main rationale for not allowing
necessity to be a defense to murder is the belief that human life must be preserved and the
purpose of the criminal law is to set a standard of conduct with which citizens must comply.
However, limiting the availability of necessity to one-off situations of emergency may
provide a method of excusing those whose dilemma produces empathy amongst citizens in
general.
The Model Criminal Code Officers’ Committee’s model defense of necessity adequately
limits the scope of the defense even where it is available to a charge of homicide. Section
10.3(2) of the Criminal Code Act 1995 emphasizes reasonableness as an objective component
rather than amorphous concepts of the ordinary or reasonable person. Because of this
objective component and because of the requirement that a sudden or extraordinary
emergency exist, necessity as a criminal defense will not be easy to rise.
“Ordinary” situations of medical treatment that have been justified in terms of the doctrine of
necessity may be better off seen as giving rise to the application of a “best interests” test. The
existence of a provision such as section 282 and 259 of the Criminal Codes of Queensland
and Western Australia provides an example of excusing health professionals from criminal
responsibility for operations carried out for the patient’s benefit.

Poverty as a necessity defense

Saurabh Bhattacharjee3 Craig Haney, Evolving Standards of Decency: Advancing the
Nature and Logic of Capital Mitigation, 36 Hofstra L. Rev. 835, 856-865 (2008).

In this article we discuss about the liberal model of criminal responsibility cannot
accommodate the defence of poverty which frontally questions liberal assumptions of
freedom and equality of choice. On the other hand, the individualized nature of sentencing
process permits reference to poverty as a relevant factor without displacing the presumption
of equality and neutrality of law. This is reflected in the contrast between judicial hostility
towards inclusion of poverty within the folds of defence of duress and necessity and judicial
endorsement of poverty as a mitigating factor.
An incipient recognition of this model can be discerned in judicial recognition of economic
necessity as a defence in cases related to sleeping in public, vagrancy and child neglect in
India and United States. In clarifying that such a defence would apply to homelessness but
not violent robbery, courts have shown their inclination to differentiate between offences
over a sweeping rejection of the defence of poverty.