# 7.4: Necessity and Duress

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Is Cannibalism a Crime?

In 1884, the English yacht, the “Mignonette” sank during a powerful storm in the South Atlantic, some 1600 miles from shore. Three men and a teenage boy, Richard Parker, made it to a lifeboat where they became adrift on the open ocean. The lifeboat had no freshwater or food. The survivors subsisted on a small turtle for twelve days. For the next eight days, they had no food. They captured rainwater, but very sporadically.

On the eighteenth day the men discussed sacrificing someone to save the rest. One of the men dissented; Richard was not consulted. On the twentieth day, still without food or water, the men killed Richard. By the time of his death, Richard was helpless and extremely weakened. Although the men told him was going to be killed, he never consented to his death. The men fed upon the boy’s flesh for four days. On the fourth day, a passing vessel rescued them.

Once back on the mainland, the Crown charged the survivors with murder. The trial received national attention with the survivors being called “heroes” for surviving such an ordeal. In an effort to prosecute the case, the Crown dismissed the charges against the least-culpable survivor. The evidence at trial demonstrated that had the men not killed and eaten the boy they all would have died of famine. Likewise, the evidence demonstrated that Richard, given his weakened state, would have likely died before rescue. Richard was moments from death when he was killed. The men contended that they acted out of pure necessity – but for eating the boy (who was going to die anyway) they all would have died.

Assume you are a juror in this case. Would you vote to convict the survivors of murder? Alternatively, were the men legally justified in their act of murder? Put another way, is killing a dying boy to save your own life a valid justification? Why or why not? Check your answer at the end of the chapter.

Want to learn more about the Mignonette and its tragic end? Joseph Simeone’s essay entitled, “Survivors” of the Eternal Sea: A Short True Story, 45 St. Louis U. L.J. 1123 (2001) is an excellent and riveting description of the events of the survivors and what happened. Simeone’s essay is available through the Consortium Library at the University of Alaska Anchorage using your student credentials.

Occasionally, the law protects a would-be defendant from criminal responsibility because the defendant had no reasonable choice but to commit the crime. The defenses of necessity and duress recognize that occasionally a greater good is achieved by violating the law. Both involve an element of compulsion. The defendant committed the criminal act due to a real or perceived need or threat.

## Necessity

The defense of necessity sanctions the violation of criminal law if necessary to prevent a significant harm. All jurisdictions authorize a necessity defense (sometimes referred to as a “choice of evils” defense) under some circumstances – roughly one-half of states allow necessity by statute, while one-half rely on the common law defense of necessity.

Alaska has codified its common law. “The law of necessity is one of public policy: the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” See Nelson v. State, 597 P.2d 977, 979 (Alaska 1979). Necessity is an affirmative defense, which requires the defendant to prove the existence of the defense by a preponderance of the evidence. AS 11.81.320. Necessity is a perfect justification and results in an acquittal.

To assert the defense of necessity, the defense must establish three elements. First, the criminal act committed must have been done to prevent a significant evil. Second, the defendant must not have an adequate alternative. Finally, the defense must cause less harm than the harm avoided – in other words, the harm caused must not have been disproportionate to the harm avoided. Necessity is only permitted in an actual emergency, not a perceived emergency.

## Scharen v. State, 249 P.3d 331 (Alaska App. 2011)

In the next case, Scharen v. State, pay close attention to how the court explains what constitutes a real, bona fide, emergency to justify the necessity defense. Emergencies of one’s own making rarely qualify.

249 P.3d 331
David J. SCHAREN, Appellant,
v.
No. A–10550.
March 18, 2011.

OPINION
MANNHEIMER, Judge.

David J. Scharen appeals his conviction for driving under the influence. Scharen argues that the trial judge committed error by refusing to instruct the jury on the defense of “necessity”. For the reasons explained in this opinion, we conclude that the trial evidence fails to support a defense of necessity. In particular, the evidence, even when construed in the light most favorable to Scharen, fails to support the conclusion that Scharen had no reasonable alternative but to take control of a motor vehicle while intoxicated. We therefore affirm Scharen’s conviction.

Underlying facts
In January 2009, Scharen and his wife attended a Juneau Ski Club fund-raising event that was held at a downtown bar, the Viking Lounge. (Scharen’s wife’s employer was a member of the ski club, and she was one of the people working at this fund-raiser.)

The Scharens arrived around 6:00 p.m., and over the course of the next hour, Scharen drank alcoholic beverages. Around 7:00 or 7:30, Scharen began to fall asleep, so his wife told him to go outside and wait for her in their minivan until the fund-raiser was over. Scharen’s wife gave him the keys so he could get into the vehicle.

Scharen left the Viking Lounge and walked to the minivan. When he arrived at the vehicle, he got into the driver’s seat, inserted the keys into the ignition, and started the engine (so that the vehicle would be warm; the outside temperature was 18 degrees). Scharen then deliberately went to sleep.

Around 9:00 p.m., a passerby saw Scharen sitting or lying unconscious in the driver’s seat, inside the running vehicle. When the passerby was unable to rouse Scharen, he summoned the police. A police officer arrived and woke Scharen up by knocking on the window and shining a light into Scharen’s eyes. Scharen stumbled out of the minivan; he smelled of alcoholic beverages, and he swayed while standing. The officer administered field sobriety tests to Scharen, and then he arrested Scharen for operating a motor vehicle under the influence. Scharen’s breath test revealed that he had a blood alcohol level of .13 percent.

At trial, Scharen’s lawyer asked the trial judge—District Court Judge Keith B. Levy—to instruct the jury on the defense of necessity. Judge Levy declined to give the proposed instruction[.]

Why we conclude that Scharen failed to present a triable issue as to whether his decision to assume control of the motor vehicle, and his decision to operate this vehicle (by turning on the engine), were justified by necessity

A criminal defendant is entitled to a jury instruction on the defense of necessity if the evidence, viewed in the light most favorable to the proposed defense, is sufficient to allow a reasonable fact-finder to conclude: (1) that the defendant committed the charged offense to prevent a significant evil; (2) that, given the circumstances (as the defendant reasonably perceived them), the defendant had no reasonable alternative—no adequate way to avoid this significant evil except by committing the charged offense; and (3) that the harm threatened or caused by the defendant’s crime was not disproportionate to the harm that the defendant sought to avoid by breaking the law.

[…]

The first element is that the defendant committed the charged offense to prevent a significant evil. Scharen argues that he faced a significant evil—injury or death because of the sub-freezing temperatures—if he sat in the unheated vehicle for hours. But AS 11.81.320(a) declares that the defense of necessity is available only “to the extent permitted by common law”. And the common law (as generally applied throughout this country) does not allow a defendant to rely on the defense of necessity if the underlying claim is that the defendant was required to break the law in order to avoid, cure, or alleviate a significant evil of their own making.

As [legal scholars explain], the American jurisdictions that recognize a “necessity” or “choice of evils” defense are in general agreement that the defendant’s creation of the danger or evil will limit the availability of the defense.

[…]

Turning to the facts of Scharen’s case, Judge Levy found that Scharen knowingly created the situation that allegedly required him to turn the vehicle’s engine on. As Judge Levy explained in his ruling, the testimony presented at Scharen’s trial showed that Scharen was sitting in a warm bar, safe from the elements, and that Scharen then made a conscious decision to leave the bar and go sit in the minivan until his wife finished her work at the ski club fund-raiser.

We further note that Scharen’s initial act of taking the keys from his wife and going to wait in the driver’s seat of the minivan was itself illegal. Even if Scharen had never started the engine, his act of assuming physical control of the vehicle constituted the offense of “driving while under the influence”—because, for purposes of this offense, “driving” includes the act of assuming actual physical control of an operable motor vehicle, even if one does not operate the vehicle. […]

Thus, Scharen’s alleged necessity to turn the engine on (so that he could stay warm) was created by Scharen’s own unlawful act of assuming physical control of the vehicle and waiting in the car for his wife.

Because, under Alaska law, the necessity defense is available only to the extent allowed by the common law, and because Scharen made a conscious choice to unlawfully put himself in a position where he would need to start the engine to keep warm, Scharen had no legal right to rely on a defense of necessity.

[…]

Turning to the second element of the necessity defense, we conclude that Scharen likewise failed to present sufficient evidence to justify a verdict in his favor on this element of the defense—the requirement that, given the circumstances (as the defendant reasonably perceived them), the defendant had no reasonable alternative method to avoid the significant evil except by committing the charged offense.

The pertinent circumstances were that Scharen went to sit in the minivan until his wife was done with the ski club fund-raiser, and it was so cold outside that Scharen could not realistically continue to sit in the vehicle unless he turned the engine on and generated heat. But as Judge Levy noted, Scharen had several alternatives to continuing to sit in the minivan.

First, Scharen could have returned to the bar. Scharen’s only ostensible reason for leaving the bar in the first place was that he or his wife might potentially be embarrassed because Scharen was visibly falling asleep at the fund-raiser. The bar remained an easily available and adequate alternative solution to the problem of the cold weather.

[…]

[Moreover], even if we assume that Scharen could not lawfully stay in the bar, there were other ways he might have dealt with the situation. It was early in the evening, and other businesses and restaurants were open in downtown Juneau. Alternatively, Scharen might have asked a friend or other member of the ski club to drive him home, or to lend him the money to take a cab. It appears, from Scharen’s testimony, that he did not even consider these alternatives. Here is the pertinent excerpt of Scharen’s cross-examination by the prosecutor, in which the prosecutor asked Scharen why he had not taken a cab home:

Prosecutor: So, Mr. Scharen, you indicated that you had credit cards on you, but that you didn’t have any [credit remaining] on them?
Scharen: No, there [was] nothing on them.
Prosecutor: So, as a matter of personal convenience, you couldn’t have called a taxicab to go home?
Scharen: No.
Prosecutor: [You] couldn’t have called a friend?
Scharen: Not really. I mean, why would I call a friend when I was waiting for my wife?

Based on this record, we conclude that no reasonable fact-finder could have decided in Scharen’s favor on the question of whether Scharen had other adequate methods (apart from breaking the law) to deal with the situation.

Because there was insufficient evidence to support findings in Scharen’s favor on the first and second elements of necessity, the third element of the necessity defense is moot. The question presented by this third element—whether the harm threatened or caused by the defendant’s crime was disproportionate to the harm that the defendant sought to avoid by breaking the law—does not arise unless the evidence would support a finding in the defendant’s favor on the first two elements of the necessity defense.

For these reasons, we uphold Judge Levy’s decision not to instruct the jury on Scharen’s proposed necessity defense.

Conclusion
The judgement of the district court is AFFIRMED.

You be in the judge (7.1) …

In August of 2006, Jennifer was drinking at home with her boyfriend, when he turned abusive and threatened to burn down the house. Jennifer fled the house and called 911 asking help. 911 dispatched police to Jennifer’s house. Instead of waiting for the police, Jennifer got in her van and drove away fleeing to her mother’s house. On the way to her mother’s house, Jennifer drove past the police station (who, unbeknownst to the officers, drove past Jennifer towards her house), past a well-lit shopping mall, and past several open businesses. An unrelated officer saw Jennifer speeding, pulled her over, and could immediately tell she was severely intoxicated. Jennifer was arrested for felony driving under the influence (Jennifer had two prior DUIs). Do you think Jennifer will be successful in relying on the affirmative defense of necessity? Why or why not? Check your answer at the end of the chapter.

## Duress

If a person commits the crime under pressure caused by the threat of force from another human being, as opposed to nature, an act of God, or circumstances outside the defendant’s control, the defendant may rely on the defense of duress. Duress justifies a criminal act when another person is threatening to kill or seriously injure a person unless the defendant commits the crime. AS 11.81.440. Duress, like necessity, is an affirmative defense.

Figure 7.5 AS 11.81.440 – Duress

Duress consists of three elements. First, the injury threatened must be immediate. A hypothetical or future injury will not suffice. Second, the defendant must have a reasonable belief that the threat will be carried out. Third, the injury threatened must be unavoidable. The defendant must not have an opportunity to escape. Duress, like necessity, is not available if the defendant placed himself in the situation.

## Example of No Duress

Scott and Dale conspire to burglarize Harvey’s residence because they believe Harvey keeps significant cash inside the home. The two co-conspirators intend to burglarize the residence when Harvey is not home, but when Scott knocked on the door to make sure no one was home, Harvey answered the door. Scott told Harvey that they (Scott and Dale) had car problems and needed to use the telephone. After they entered the house, Dale pulled a gun and held Harvey at gunpoint. Dale ordered Scott to tie up Harvey or Dale would kill both Harvey and Scott. Dale then ransacked the house, stealing Harvey’s cash. As they left the house, Dale shot and killed Harvey (to prevent Harvey from calling the police). Days later, Scott was arrested and charged with murder, robbery, burglary, and theft. At trial, Scott claimed that he did not know Dale was going to use a gun and that he went along with the crime out of fear for his own safety. Scott claimed that if he did not participate Dale would have killed him.

In this scenario, Scott is not entitled to claim duress. The situation giving rise to Dale’s threat of force against Scott was a situation that Scott created. Had Scott not participated in the burglary, he would not have needed to claim duress. Note, however, that Scott may be entitled to an affirmative defense to the specific charge of homicide (i.e., felony murder), but we will explore that in a different chapter.

You be in the judge (7.2) …

Juan is a native of Bogota, Colombia and was a taxi driver there. He was approached by one of his passengers, Jorge, and offered a job to swallow cocaine-filled balloons and transport them to the United States. Juan initially agreed, but several days later, changed his mind and told Jorge that he would not transport the drugs. Jorge told Juan that his failure to cooperate would result in the death of his wife and three-year-old child. Juan transported the cocaine to the United States as planned. When Juan arrived at the customs inspection point, he consented to have his stomach x-rayed. The x-rays revealed the cocaine in Juan’s stomach. Juan was indicted for drug-trafficking. Do you think Juan will be able to assert the defense of duress? Why or why not? Check your answer at the end of the chapter.

This page titled 7.4: Necessity and Duress is shared under a CC BY-NC-SA 4.0 license and was authored, remixed, and/or curated by Rob Henderson via source content that was edited to the style and standards of the LibreTexts platform; a detailed edit history is available upon request.