Re-Blog #9: I had to do it

Originally Posted: Mar. 22, 2013 - http://batchelorstammlaw.com/2013/03/i-had-to-do-it/

 

I had to do it: the defence of necessity

I had to….

• bust in the door. She had my keys and wouldn’t give them back, and I needed to go to work.
• drive the car after drinking. My car was blocking my buddy’s car and he had to pick up his kid.
• steal that food, my family was starving we would have died.
• break into that cabin, we were lost in the woods and there was a blizzard, we would have frozen.
• throw James to the hungry wolves, otherwise they would have eaten all of us.

I HAD NO CHOICE!

Introduction

The “I had to do it” defence is known in legal circles as the defence of necessity. This is what we call an excusatory defence. It allows the court to excuse you for committing the crime, even though you did it, because we are all human and sometimes in an emergency we try to save our own skin instead of obeying the law. So far it’s sounding good, but the fact is that the court takes a very narrow view of what is excusable. From the list above only one of those claims is likely to get anywhere near a necessity defence. Extra points for you, if you can figure out which one.

While you’re thinking about it, let’s talk a little bit more about how the necessity defence works. The defence of necessity can save you when three things come together:

(1) There is imminent peril (aka something really bad is about to happen);
(2) There is no legal way to avoid disaster;
(3) The harm you caused by breaking the law is less than or similar to the harm you avoided.

Imminent Peril

Those circumstances might be difficult enough to find on their own, but it gets even harder when we pin down what imminent peril means.

First of all the danger can’t befrom somebody else being violent. When somebody else is being violent and you do something to stop them we look at the law of self-defence (also defence of others, and defence of property). It also can’t be because of threats to you and your loved ones. When you have to do something because of threats we look at the law of duress. Let’s save those for another day. The type of danger I’m talking about is from nature or forces other than man. For example a huge storm at sea, a fire, a medical emergency, or wild animals.

The danger has to be both significant (ie. not you will be late for work, but someone will be badly hurt or die), and imminent (ie. happening now, not sometime in the next day or so). If it’s not a significant you’re expected to obey the law and suffer the consequences. If it’s not imminent you should keep trying to find a legal solution until it becomes imminent and you run out of choices.

The last part is that it can’t be a foreseeable harm. If you throw yourself into the lion exhibit at the zoo you should realize that the lions might attack you. That’s foreseeable. So when you start shooting all the lions you won’t have a necessity defence because you are the one who caused the imminent peril in the first place.

Okay, so we have imminent peril. If you don’t do something now people will die. It’s not your fault that you’re in this situation, it just happened but now you have to deal with it. Step 2. Is there a legal way out?

No (legal) way out!

Your standing on the street corner, your friend just got stung by a bee. He’s allergic. He needs his auto-injector and if he doesn’t get it he might die. You don’t have one and for some reason out of everyone’s control neither does he. Then you see one behind the glass of the pharmacy window right next to you, but the store is closed. You’re thinking about throwing a rock through the window and stealing that auto-injector. You probably have imminent peril, but is there a legal way out?

If you have a cellphone you should probably call 911, if not you should shout for help. If it turns out there is an ambulance around the corner, or there is someone else with an auto-injector walking down the street, your buddy can be saved without committing any crimes.

Just as in our example the legal solution that people tend to forget about is usually getting help. Make sure before you resort to crime that there isn’t a legal way to resolve things, like getting help.

You’re staring down imminent peril, there’s no legal way out, and no-one is going to help you. Your about to commit that crime. There’s only one more step before you can rely on the defence of necessity.

The scales of justice

The harm you’re about to cause has to be less than or at least roughly equal to the harm your avoiding. So breaking the window and stealing the auto-injector to save a life seems like a safe bet. Similarly breaking into the cabin in the woods to avoid freezing to death seems safe.

On the other hand it’s hard to imagine what would justify setting a school on fire, or cutting off someone’s arm. It’s even harder to imagine a case where killing someone would be excusable even though it seems to come up in the movies all the time.

Conclusion

The “I had to do it” defence is one of the better excuses to use on your friends. They nod sympathetically and say “I get it, you had no choice, you would have been late for work, you could have lost your job….” Unfortunately it’s one of the hardest defences to use in court, but….

If you had to do it because if you hadn’t

• Something terrible would have happened, and
• There was no time to wait in case the situation improved, and
• You couldn’t have avoided the situation by thinking ahead, and
• There was no legal way out (including calling for help), and
• You caused less harm than you avoided.

Then you might have a necessity defence. Otherwise all you have is explanations that make the crime seem either better or worse and effect the harshness of the sentence you will get.

Article authored by:

Cody Walker, Law Student, CD, AA