The necessity defense encourages citizens faced with untenable options to choose the action that generates the greatest social utility, even when that act is illegal. Reserved for the rarest occasions, the defense allows a person to argue that his otherwise illegal action should not just be excused, but that it was justified. The defense has the power to transform a criminal defendant into a community hero—but the line between hero and vigilante is thin. As a result, the defense has more vitality in the halls of academia than in courtrooms.
The defense proves particularly elusive when invoked by those who rescue nonhuman animals from abusive situations. Although the defense is seldom explicitly barred by the legislature, the defense is generally poorly defined and its application is highly discretionary. This ambiguity in application allows judges to place the defense beyond the reach of animal advocates.
This article argues that judges are overly cautious when denying the defense to those who rescue nonhuman animals. It concludes that a more robust application of the defense could ultimately conserve judicial resources while honoring the integrity of our judicial system. By allowing the defense to proceed in what appear to be close cases, judges would preserve their neutrality and allow juries to decide how best to resolve the tension in the law that simultaneously protects and exploits nonhuman animals.