Fun, Fun, Fun

A short break to type this. I'm in the library (my second home now) finishing up a brief for my Legal Writing 2 class. The topic is whether or not a divorcee is allowed to remove minor children out of the Commonwealth of Massachusetts to another state. You go through these cases with a fine tooth comb, and, after awhile, your brain turns to tapioca and steam whistles out of your ears.

Things are good otherwise. More fun in Crim Law today. This time, a more realisitic hypo, with variations, detailing the differences between the defenses of self-defense and necessity. Hypo: suppose a worker is being jointly attacked by a woman, her insane husband, and her 8-year-old child. All have machine guns. The worker has only a grenade (which he somehow obtained from the attackers' stockpile) to defend himself. If he lobs it at the attackers, he will kill them all. If he does not, he will die.

The question is, if he decides to throw the grenade, can he be legally justified if charged with killing the three attackers? The answer is yes. One has a right to defend himself against unlawful, aggressive force with equally aggressive force. It doesn't matter that the aggressors are mentally incompetent (the insane husband) 0r minors (the 8-year-old). Thus, the worker can assert self-defense. However, the worker cannot (most likely) assert a necessity defense. To assert a necessity defense, the harm sought to be avoided must outweigh the harm committed to avoid the harm sought to be avoided. In this case, the harm sought to be avoided (the death of the worker, a single life) does not outweigh the harm committed (the death of three: woman, husband, and child). However, the act of the worker defending himself is legally justified. (If one could argue that the attackers, if alive, would, in the future, kill more people, then one may be able to "balance the scales" in favor of harm sought to be avoided, hence the "most likely.")

In the first variation, the same situation applies, but, in addition, the worker knows that an innocent person in an adjoining apartment will be killed if he throws the grenade. The worker, in this case, is not justified in throwing the grenade. The model penal code allows one to take an innocent life if it is a lesser evil, but the balance of innocent lives (per the above necessity rule) does not tip in his favor. One cannot kill one innocent to save one innocent.

In the second variation, the worker has an aide with him, who is an innocent. In this instance, the balance of innocent lives would allow the defense of necessity; the killings would be justified.

A more precise analysis would be, though, to separate the attackers from the innocents in these hypos, and allow the diplomat to assert separate defenses. Thus, the worker could assert self-defense when charged with killing the attackers, and assert necessity (lesser evils defense) when charged with the killing of the innocent.

So, the next time you're in this situation, you'll know what to do....