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.

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.

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

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.

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 paragraph (1)(a). 81 H. 147 (App.), 913 P.2d 558.

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

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

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.

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.

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