A necessity defense is a defense to liability for unlawful activity where the conduct cannot be avoided and one is justified in the particular conduct because it will prevent the occurrence of a harm that is more serious.
In criminal law, a necessity defense claims the actor’s illegal conduct was the necessary lesser of two evils in a situation threatening specific harm to the actor or others. According to California jury instructions, a successful necessity defense must prove:
- The actor acted to prevent injury to the actor or someone else;
- The actor had no reasonable alternative;
- The actor did not create greater danger than the danger avoided;
- The actor actually believed the illegal conduct was necessary to prevent the threatened harm or evil;
- A reasonable person would have also believed the illegal conduct was necessary in the circumstances and
- The actor did not substantially contribute to the emergency.
Most jurisdictions follow similar elements, but some also include a proportionality element between the harm threatened and the illegal conduct. Necessity defenses will not apply if the actor acted with a different intent than to avoid harm, had a reasonable alternative, had no influence on the threatened harm, or failed any of the other elements. A necessity defense is an affirmative defense and a justification defense.
Necessity is very similar to duress and the two defenses are sometimes indistinguishable. Both defenses claim an actor’s illegal conduct was justified due to the threat of harm. However, duress is usually caused by actions of people while necessity is caused by other circumstances or forces. Additionally, an actor under duress does not have the required mental state to commit a crime due to the threat of harm while an actor acting out of necessity chooses the better of two unavoidable evils.
In tort law, there are two different categories of the necessity defense that can be employed: public necessity and private necessity.
[Last updated in July of 2023 by the Wex Definitions Team]
- Keywords