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Example of the Choice of Evils Defense

5 October, 2015 - 10:06

Tamara gets lost while hiking in a remote, mountainous area. After wandering around for hours with the temperature dropping, Tamara finds a locked cabin. Tamara breaks a window and climbs inside. Once inside, Tamara prepares some canned chili, drinks tap water, and uses the telephone to call law enforcement. Tamara could probably plead and prove choice of evils as a defense to burglary and theft in many jurisdictions. Tamara was confronted with two harms: harm to her personal safety and well-being and harm to the real and personal property of another. The harm to Tamara’s health and safety is ranked morseverthan the minimal harm to property. It is objectively reasonablto break into and enter a cabin and use some of the supplies inside to prevent imminent injury or death. Thus although Tamara committed burglary and theft in many jurisdictions, she did so with the reasonable belief that she was saving her own life. A trier of fact could find that the harm avoided by Tamara’s actions was greater than the harm caused by the burglary and theft, and Tamara could be acquitted, or have her sentence or crime reduced, depending on the jurisdiction.

Change the facts in the preceding example, and imagine that Tamara steals money and jewelry in addition to the chili and tap water. Tamara could not successfully prove the defense of choice of evils to this additional theft. No harm was avoided by Tamara’s theft of the money and jewelry. Thus choice of evils cannot justify this crime.

Change the facts in the preceding example, and imagine that Tamara kills the cabin’s owner because he refuses to allow her to enter. Tamara could not successfully prove the defense of choice of evils under these circumstances. Tamara’s life is no morimportant than the cabin owner’s. Thus Tamara cannot rank the harms, and choice of evils cannot justify criminal homicide in this case.