§703-302 Choice of evils. (1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that:

(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;

(b) Neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for the actor's conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

(3) In a prosecution for escape under section 710-1020 or 710-1021, the defense available under this section is limited to an affirmative defense consisting of the following elements:

(a) The actor receives a threat, express or implied, of death, substantial bodily injury, or forcible sexual attack;

(b) Complaint to the proper prison authorities is either impossible under the circumstances or there exists a history of futile complaints;

(c) Under the circumstances there is no time or opportunity to resort to the courts;

(d) No force or violence is used against prison personnel or other innocent persons; and

(e) The actor promptly reports to the proper authorities when the actor has attained a position of safety from the immediate threat. [L 1972, c 9, pt of §1; am L 1986, c 314, §6; gen ch 1993]

Revision Note

In subsection (1)(a), "and" deleted pursuant to §23G-15.

COMMENTARY ON §703-302

This section defines what is often called the defense of "necessity." It permits the actor, in certain limited situations, to justify disobedience to criminal law if the harm the actor sought to avert by the actor's disobedience far outweighed the harm sought to be prevented by the law. Necessity has been accepted as a defense at common law in some cases, and has been given statutory recognition in a number of enacted codes.

The section may be used, first, to justify only slightly harmful acts which are necessary to avoid a far greater harm. For instance, a court would hardly wish to punish a person for driving at night without the proper lights when the person did so only to summon help to extinguish a fire. The section also provides a justification for more serious acts. For example, it could be used to justify the taking of life to avoid a far greater loss of life. In a classic case, a ship's crew threw certain passengers overboard to lighten an overloaded boat, which would otherwise have sunk with much greater loss of life. This section would justify the action if all of its conditions are met.

There are numerous reasons supporting the defense of necessity. First, because an individual will probably kill one person, or a few, to avoid the deaths of many others regardless of what the law may say, punishment in such situations would fail to attain its objective of deterrence and would not reflect widely held views about what would be the moral thing to do in such a situation. Second, the life of every individual is assumed to be of equal value, and therefore a numerical preponderance in lives saved over those sacrificed establishes an ethical and legal justification for the otherwise criminal act. Third, there are numerous safeguards built into §703-302. The danger causing the necessity of choosing between evils must be imminent. Moreover, subsection (2) provides that if the necessity of choosing between harms or evils results from the defendant's recklessness or negligence, the defense is not available in a prosecution of any offense for which recklessness or negligence, as the case may be, suffices for conviction.

It is no defense under this section that the defendant thought compliance with a statute immoral or unwise; the legislative decision to make particular conduct criminal is to be given great weight. However, this defense is probably in accord with normal legislative intentions, because blind obedience is unlikely to be required in the face of an emergency. The whole matter, with all of its ramifications is to be weighed by the court and the jury in the same manner as in any criminal proceeding. If the defendant's conduct was not necessary, if one evil was not greater than the other, if the defendant exceeded the reasonable bounds of intelligence and morality, the defendant may be convicted for the defendant's conduct notwithstanding the defendant's attempts to justify the defendant's actions.

Finally, many commentators have had difficulty with the concept of necessity because of the possibility of unforeseeable changes in the perilous situation. For instance, if a number of passengers are thrown overboard from a ship to save a much larger number of persons, there is really no way for the actors to foresee the exact moment when a rescue ship may arrive. There is always the chance that help will arrive in time to make the emergency action unnecessary. Such objections, however, fail to take account of the fact that other defenses which are predicated on a threat to person or property can take account only of the probability of harm. One can never guarantee that the uplifted knife will be plunged into the victim. "If necessity is not admitted where there is a high degree of probability of disastrous consequences if action is not taken, then it can never be admitted."1 A person faced with such seeming necessity is and will remain in a personal moral quandary because of the person's uncertainty. Our only point is that the threat of criminal punishment is unneeded here.

There has been no previous statutory provision or case law development in Hawaii on the defense of necessity; this section represents a needed addition to the law.

SUPPLEMENTAL COMMENTARY ON §703-302

The legislature accepted §302 of the Proposed Draft without modification. Subsection (2) provides that the defense of justification based on a choice of evils is unavailable where recklessness or negligence suffices to establish culpability when the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for the actor's conduct. However, in light of the legislature's introduction of the "reasonable man standard" in §703-300, it appears that negligence on the actor's part in bringing about the situation or in appraising the necessity for the actor's conduct will be sufficient to eliminate the defense in cases which otherwise require intent, knowledge, or recklessness to establish culpability.

Case Notes

Defense of necessity is available to prisoners escaping from prison. 58 H. 252, 566 P.2d 1378 (1977).

The elements of the choice of evils defense are limited to those enumerated by the express language of this section and common law "considerations" have not been incorporated into the statutory formulation. 90 H. 58, 976 P.2d 372 (1998).

Choice of evils defense could not apply where defendant had dumped marijuana over lanai railing, thereby eliminating any threat of imminent harm to wife from marijuana use as required under subsection (1)(a); thus, no imminent harm was present to justify defendant's physical abuse of wife. 93 H. 63, 996 P.2d 268 (2000).

The exclusivity of the narrow choice of evils defense set forth in subsection (3) is limited to prosecutions for escape from correctional or detention facilities but not to prosecutions for escape from custody that does not implicate an incarcerational setting; the generic choice of evils defense set forth in subsection (1) is applicable in a prosecution for escape from non-incarcerational custody. 96 H. 83, 26 P.3d 572 (2001).

A dolphin is not "another" within the meaning of this section. 1 H. App. 19, 613 P.2d 1328 (1980).

"Necessity" or "choice of evils" defense discussed. 9 H. App. 115, 826 P.2d 884 (1992).

Harm committed by defendant resisting an order to stop a motor vehicle under §710-1027(1) by driving away after traffic stop not reasonably designed to actually avoid possible serious physical harm to defendant or passenger under subsection (1)(a). 81 H. 147 (App.), 913 P.2d 558 (1996).

Where case was covered by the defense of defense of others under §703-305 and, possibly, self-defense under §703-304, the choice of evils defense under this section did not apply. 90 H. 175 (App.), 977 P.2d 183 (1999).

Defendant was not entitled to a jury instruction on the "choice of evils" defense where, pursuant to subsection (1)(b), the Hawaii Penal Code provided a defense (self-defense) dealing with the specific situation involved. 91 H. 450 (App.), 984 P.2d 1276 (1999).

The choice of evils defense under this section and the duress defense under §702-231 are not, as a matter of statutory law, inconsistent. 93 H. 399 (App.), 4 P.3d 533 (2000).

The more specific choice of evils affirmative defense for prison escape situations under subsection (3) must be construed in conjunction with the more general choice of evils justification defense under subsection (1); thus, any escape on the part of a prisoner must be conduct which a prisoner believes to be necessary to avoid any imminent harm or evil to the prisoner. 93 H. 399 (App.), 4 P.3d 533 (2000).

Unborn children are not included within the definition of "another" or "person" for purposes of the Hawaii Penal Code; thus, defendant could not justify defendant's physical abuse of girlfriend on grounds that defendant was protecting "another" or a third person, specifically, defendant's unborn child. 101 H. 3 (App.), 61 P.3d 514 (2002).

Trial court erred when it gave its choice of evils instruction as evidence did not support a choice of evils instruction; however, there was no reasonable possibility that the error contributed to defendant's conviction. 105 H. 319 (App.), 97 P.3d 395 (2004).

Trial court did not err in denying defendant's request that in addition to the choice of evils defense under this section, jury be instructed on the justification defenses of use of force in the protection of self and others under §§703-304 and 703-305; defendant's theory of defense was fully and adequately covered by the choice of evils instruction which the trial court gave and under the circumstances of the case, there was no reasonable possibility that the jury, which rejected defendant's choice of evils defense, might have embraced defenses based on §§703-304 and 703-305. 114 H. 507 (App.), 164 P.3d 765 (2007).

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§703-302 Commentary:

1. Smith & Hogan, Criminal Law 123 (1965).