Sunday afternoon, Mark was arrested for the possession of marijuana. In his defense, he told the police that he has been diagnosed with a bleeding ulcer. Every time he eats, he vomits, causing him to no longer want to eat. He bought and smoked the marijuana to increase his appetite to reduce the pain of the ulcer. He has no insurance and over-the-counter medications do not stop him from vomiting. Is this a crime of necessity? Why or why not? What are the criteria for the necessity defense? Analyze this case by applying the elements of necessity. Choose a position, come to a conclusion, and argue why Mark would be found guilty or not guilty.

Question

What will be an ideal response?

Answer 1

Students must apply each of the elements of the necessity defense: (1) there was an immediate and imminent harm – students must argue whether the harm of vomiting was imminent or not; (2) the defendant was not substantially at fault in creating the emergency; (3) the harm created by the criminal act is less than that caused by the harm confronting the individual – was smoking marijuana more harmful than the pain caused by the ulcer and the vomiting; (4) the individual reasonably expected a direct causal relationship between his acts and the harm to be averted – smoking marijuana must be the direct cause that Mark stopped vomiting; (5) there were no legal alternatives; (6) the criminal statute does not preclude the necessity defense – it was not stated whether there was a statute that states the necessity defense is inapplicable.