Defence by Necessity

[Jamie123]

One of my favorite TV shows at the moment is The Big Bang Theory. I expect you know it - it's about four nerdy Caltech scientists and their attempts to interact with "normal" people - especially girls. If you do know it, you'll probably start huffing and puffing at me for liking a show which presents casual sex in a positive light, and promiscuity as something "cute and funny". I assure you this does bother me also, especially as this sort of thing permeates nearly all mainstream comedy these days. But that aside, I do find The Big Bang Theory to be a very funny show.

The central character is Dr. Sheldon Cooper, with two PhD's and a chronic case of OCD, who together with his best friend Leonard live next door to a pretty (though not overly feminine) actress named Penny. In one storyline Penny dislocates her arm and persuades Sheldon, who detests driving and has only a learner's permit, to drive her to the hospital. A few episodes later Sheldon receives a court summons for driving through a red light during this "mercy-dash". Being Sheldon, he tries to argue his way out of it and ends up insulting the judge. Faced with a choice between jail and paying his fine he chooses the former….until he discovers that jail involves relieving himself in front of the other prisoners. (At which point he rapidly changes his mind!)

But all this is incidental. What I really want to talk about is the defence Sheldon uses to get out of paying his fine: quod est necessarium est licitum "that which is necessary is legal". (Sheldon never misses an opportunity to show off his Latin!) Anyway, after a short Googling session I discovered that this is a real legal doctrine. Opinions seem to differ though - consider this on Yahoo Answers:

"Not true. A person finds the necessity to have a car but no money to purchase. He went to the parking [lot?], break open the door of your car and moved [it] away with duplicate key or instrument. Will you justify him?"

Well generally speaking no, I wouldn't, but it would depend why he wanted my car. If he "needed" to get to the dentist, definitely not. But if my car were the only way he could get to and defuse an atomic bomb which would otherwise destroy the whole of London, it's a no-brainer that I would! And anyway, we're not talking about what I would personally try to justify, but what is and isn't legal.

Here is a more useful comment:

"It is called the "Defense of necessity". It is a defense to a criminal prosecution that the illegal act was necessary. Note that the legal definition of "necessary" is not what you might think. Stealing food because you are broke and hungry, for example, is not "necessary" - you could have panhandled, for example, as another option."

(A question though: isn't panhandling also illegal?) It seems that the doctrine is at least technically true, but it is rarely used, and even more rarely successful - perhaps because cases of genuine "necessity" are in practice weeded out long before a defendant reaches trial.

There have, however been some interesting cases where the defense has failed. A particularly interesting one happened in 1884, when the Mignonette, a small ship en route from England to Australia was caught in a gale and wrecked. The four crewmembers escaped in an open boat, but without sufficient food or water. One of them, a young sailor named Richard Parker soon fell into a coma, and the other three began to look at him with hungry eyes. Though Parker was clearly dying, they reasoned that by the time he actually died they themselves might be beyond hope. So they stabbed him to death and ate him.

When the three survivors were eventually rescued, they were taken back to England and tried for Parker's murder. However, their defense of "necessity" was rejected by the court on the basis that they did not know at the time that the murder was necessary; a ship could have sailed over the horizon at any moment. Two of them were found guilty and sentenced to death by hanging. The third was acquitted on the grounds that he hadn't played an active part in the murder (though he had done nothing to prevent it either).

However, in the face of growing public protest, the death sentences were commuted to imprisonment, and the men were free again in a matter of months.

Edited May 11, 2012 by Jamie123

[Dravin]

Jamie do you have a specific question for the peanut gallery? Or are you just trying to start a general conversation by sharing your thoughts? Both work, I just want to make sure I didn't miss your specific question if you had one.

[Jamie123]

Jamie do you have a specific question for the peanut gallery? Or are you just trying to start a general conversation by sharing your thoughts?

No specific question - I was just sharing what I'd found out. I'm just one of those people who likes to talk. If it starts a conversation, well and good. If it doesn't, no problem :)

[Dravin]

Neither really - I'm just one of those people who likes to talk. If it starts a conversation, well and good. If it doesn't, no problem :)

Okay. :)

For what it's worth I'm familiar with your second example (I don't watch the show for the first), I've always wondered what I'd do in a cannibalism scenario. I don't think I could bring myself to kill off the poor sod, but in the stuck on a boat and someone died would you have a taste scenario? Not sure how I'd react, I've never been that hungry/thirsty before.

[JudoMinja]

As it pertains to Sheldon's scenario- even if the judge had been willing to entertain his claim of "Defense of Necessity" I think it would have failed. He ran the red light when Penny told him to go for it, but it was not necessary for him to run the red light. Penny's dislocated shoulder was not a life threatening issue that required she reach the hospital as quickly as possible. So, he could have stopped and everything would have been fine.

If he had been using the defense to explain while he'd been driving her vehicle, fine. But it was okay for him to drive it anyway, because he had a permit and had someone over 18 sitting in the passenger seat. He might have been able to win the defense and blame it on Penny if he'd appealed to the fact that drivers on permits who go to a driving school are supposed to follow all the instructions of their teacher, and Penny qualifies as his teacher since she was the one instructing him. I think this would fall under something like being under duress? He was just doing what he was told, and Penny was the one who failed to instruct him properly, so it was really her fault.

[Dravin]

As it pertains to Sheldon's scenario- even if the judge had been willing to entertain his claim of "Defense of Necessity" I think it would have failed. He ran the red light when Penny told him to go for it, but it was not necessary for him to run the red light. Penny's dislocated shoulder was not a life threatening issue that required she reach the hospital as quickly as possible. So, he could have stopped and everything would have been fine.

That's a very valid point, the time required to wait for the light wouldn't have put her in jeopardy. If she'd been bleeding out from a severed hand he may have been able to pull it off, or at least made a better case.

Interestingly if I'm reading this right, a provisional instruction permit for the State of California stipulates no night driving, he could probably claim necessity on that. Also the shotgun driver needs to be capable of taking over the wheel, depending on which arm was dislocated she may not have been qualified to act as the shot-gun driver, though once gain a possible necessity claim.

Linky: Provisional Instruction Permit or Driver License Information

If he had been using the defense to explain while he'd been driving her vehicle, fine. But it was okay for him to drive it anyway, because he had a permit and had someone over 18 sitting in the passenger seat. He might have been able to win the defense and blame it on Penny if he'd appealed to the fact that drivers on permits who go to a driving school are supposed to follow all the instructions of their teacher, and Penny qualifies as his teacher since she was the one instructing him.

I think you'd have a hard time making the connection between the shot-gun driver, and someone who is officially acting in a teaching capacity. What such a claim boils down to is, "I was just following orders." Anyone with a learners permit knows it is against the law to run a red light. If it wasn't known to be an illegal move you might be able to try that defense though.

Edited May 11, 2012 by Dravin

[Backroads]

I loved both those episodes.

But I agree that Sheldon had very little claim. Waiting two minutes at a red light would not have significantly caused further damage to poor Penny. And Judo is right that Penny was the "adult" in the car, but is there any claim of defense for her that she was in pain and not feeling quite right?

If I remember correctly, didn't Sheldon originally try to make Penny pay the fine?

[JudoMinja]

I think you'd have a hard time making the connection between the shot-gun driver, and someone who is officially acting in a teaching capacity. What such a claim boils down to is, "I was just following orders." Anyone with a learners permit knows it is against the law to run a red light. If it wasn't known to be an illegal move you might be able to try that defense though.

Very true. He might have been able to work that defense though better than the necessity plea, taking into account the stress of the situation, Penny's mental state, etc. It's not a wholly solid defense, but I think it would have been more workable than what he was trying. Overall though, he knew running the red light was wrong and it was still his decision to do so.

I think the necessity defense would fit to situations similar to his, but where the passenger being transported to the hospital was in need of immediate medical attention. My mother, for example, once drove my father to the hospital and ended up with a police officer tailing her but she didn't stop. My dad was curled up and in tears from abdominal pains, and she'd had a very difficult time getting him in the car and didn't want to wait for an ambulance. When she pulled up where the ambulances usually pull up though and buzzed the people inside to come get my dad out of her car- the police officer just left and didn't even talk to my mom about her driving. If he had given her a ticket or arrested her for not pulling over for him, she could have used the necessity plea.

Edited May 11, 2012 by JudoMinja

[Guest]

Haven't seen the show but I'm starting to like this Sheldon character...

[Guest]

Sheldon is as I picture Vort in real life, thanks to some help by another poster.

Bazinga!

[JudoMinja]

Haven't seen the show but I'm starting to like this Sheldon character...

Sheldon is as I picture Vort in real life, thanks to some help by another poster.

Bazinga!

That, and Sheldon really makes the show. The other characters have their funny moments and they interesting qualities, but if it wasn't for Sheldon I wouldn't even watch The Big Bang Theory.

[Backroads]

Sheldon is as I picture Vort in real life, thanks to some help by another poster.

Bazinga!

If I started a petition to get Vort to change his avatar to a picture of Sheldon, would anyone back me up?

[Guest]

If I started a petition to get Vort to change his avatar to a picture of Sheldon, would anyone back me up?

I'll sign twice!

[Bini]

Fan of the show and LOVE Sheldon.

[volgadon]

(Sheldon never misses an opportunity to show off his Latin!)

I'm not OCD, but I love my Latin tags.