Necessity is a defense to criminal liability. It’s defined in section 939.47 of the Wisconsin Statutes:
Pressure of natural physical forces which causes the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster, or imminent death or great bodily harm to the actor or another and which causes him or her so to act, is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide.
If the jury finds that the defendant’s actions qualify for the necessity defense, the jury is instructed that they must find the defendant not guilty.
Natural physical forces are defined broadly. In State v. Olson, the Wisconsin Court of Appeals held that certain things qualified as natural physical forces:
. . . storms, fires and privations. Thus, a person lost in a storm who breaks into an isolated house in order to take refuge is justified in so doing by the doctrine of necessity. A person who, seeking to stop the spread of a fire, razes a building in order to save a town is similarly justified. A third example is that of a person who throws property from an overcrowded boat in order to prevent it from sinking. 99 Wis. 2d 572, 576.
That same court held that an environmental protester could not use the necessity defense after he was charged with disorderly conduct for attempting to stop a tanker carrying spent nuclear fuel.
Similarly, in State v. Anthuber, 201 Wis.2d 512, 518, the Court of Appeals rejected a claim that heroin addiction paired with a refusal to provide a Department of Corrections prisoner methadone wasn’t enough to show necessity. It indicated that the “force” affecting the defendant was not a “natural physical force” because it was caused when the defendant chose to start using heroin and there wasn’t any evidence that the defendant had no control over his decision. The Anthuber court seemed to leave open the possibility that the necessity defense was available to an individual who had no control over his decision to start using heroin.
In State v. Horn, 126 Wis.2d 447 the Court of Appeals dealt with a trespass case in which the defendants attempted to use the necessity defense. That case arose from a situation where protesters refused to leave an abortion clinic and were charged. The court simply held that abortions were legal and it was unreasonable for the defendants to believe that they must commit criminal trespass to prevent that legal and constitutionally protected activity. The court pointed out that challenges to abortion law should be dealt with through proper legal channels, not through committing crimes.
The necessity defense can be used in interesting circumstances. The focus is on natural physical forces, but the above-discussion shows that the defense isn’t limited to things like environmental disasters. It’s conceivable that the defense could have been used had the facts changed slightly in Anthuber. Arguing that necessity applies to something like an addiction is best done with a top criminal defense attorney at your side.
If you’d like to talk about the possibility of using the necessity defense in your criminal case, contact an experienced Milwaukee defense attorney like Matthew Meyer or Benjamin T. Van Severen. At Meyer Van Severen, S.C. we focus 100% of our resources on defending criminal cases and trying to show things like the necessity defense. We believe that when facing a criminal charge, it’s wise to have the best criminal defense attorney on your side. Call (414) 270-0202 for help.