Defense of Necessity

In American criminal law, there exists a doctrine of necessity. Also termed necessity defense, essentially this doctrine holds that necessity may justify or exculpate a defendant. (Necessity and self-defense can be combined depending upon the specific state's code.) Defendants raising this defense argue that their crimes were not in fact criminal in nature because their conduct was necessary to prevent a greater harm. An example normally given is that of a man lost in the woods during a ferocious snowstorm who breaks into another's home in order to seek shelter, warmth and food. The law has recognized that trespassing onto another's property was necessary in order to save the man's life. (Of course, even necessary actions must be confined and narrowly tailored to prevent the greater harm. For instance in the above example, the lost man could not steal, vandalize or otherwise damage the house in which he sought refuge.) Similar necessity defenses exist in England, Canada, Sweden, Australia and others.

The Kansas state court may soon be contending with the necessity doctrine according to the Associated Press of November 24, 2009. Recall the murder of George Tiller, a physician who owned and operated an abortion clinic in Kansas which provided late-term abortions, by the self-proclaimed anti-abortion activist Scott Roeder. Recent public statements by Roeder's attorney indicate that the defense may be planning to bring a necessity defense into the courtroom.

Specifically, Roeder's attorney reported that his client has an "absolute right" to present a defense that argues the killing was justified to stop abortion. The prosecution filed a motion to preclude the defense from raising necessity and a hearing on the issue is scheduled for December 22, 2009. To bolster their argument, the prosecution cited a criminal trespass case in which the Kansas Supreme Court ruled that to allow the personal beliefs of a person to justify criminal activity to stop a law-abiding citizen from exercising rights would "not only lead to chaos but would be tantamount to sanctioning anarchy." Roeder's public defenders responded that his case differs because a trespass at an abortion clinic is just a potential temporary interruption of the practice of abortion. They stated,"It is inconclusive whether the lives of the unborn were spared as a result of the act of criminal trespass. In the instant case, the result of the alleged murder resulted in the termination of abortions being performed in the City of Wichita by the victim, Dr. George Tiller." More importantly, the defense attorneys noted the Supreme Court also said that whether "the necessity defense should be adopted or recognized in Kansas may best be left for another day." Therefore, it appears the question concerning the viability of a necessity defense in a Kansas courtoom remains unanswered.