How Does the Necessity Defense Work in Washington State?

At the Law Office of Erin Bradley McAleer, we often represent individuals facing criminal charges who acted in difficult, high-pressure situations. One of the least understood defenses under Washington law is the necessity defense. While it is rarely used successfully, necessity can serve as a powerful argument when someone breaks the law to prevent a greater harm.

What Is the Necessity Defense?

Necessity is an affirmative defense. Unlike defenses where a person denies committing the act, necessity accepts that the defendant technically broke the law but did so to avoid a significant, imminent threat.

Imagine, for example, breaking into a locked building to rescue someone trapped in a fire or entering private property to obtain life-saving medical equipment during an emergency. In such situations, the conduct—though unlawful—may be excused because it was necessary to prevent a more serious injury or loss of life.

Four Elements You Must Prove

Washington courts apply a strict, four-part test to determine whether necessity applies. The person asserting the defense has the burden to prove all four elements by a preponderance of the evidence, meaning it is more likely than not that each element is satisfied:

1. Reasonable Belief of Imminent Harm
   The defendant must have reasonably believed that committing the offense was necessary to prevent or minimize an imminent danger. The threat cannot be hypothetical or remote.
2. Prevention of Greater Harm
   The harm avoided must outweigh the harm caused by breaking the law. Courts will carefully weigh whether the conduct was proportionate to the threat.
3. No Reasonable Legal Alternative
   There must have been no effective legal alternative to committing the offense. If any realistic lawful option existed to prevent the harm, the defense fails.
4. No Fault in Creating the Situation
   The defendant must not have substantially contributed to creating the emergency that required action.

If any of these elements cannot be established, the court will not allow the jury to consider the defense.

The Court’s Role and Burden of Proof

Unlike many other defenses, necessity requires the defendant to carry the burden of proof. This means you and your attorney must present evidence demonstrating that each element is satisfied.

Judges serve as gatekeepers and will decide in a pretrial hearing whether the facts justify putting the defense before a jury. This makes it critical to gather and preserve evidence as early as possible.

When Is the Defense Commonly Raised?

In Washington, necessity is most frequently raised in two types of cases:

• Emergencies, such as natural disasters or situations involving immediate threats to life or safety.
• Civil disobedience or protest-related arrests, including trespass or property damage undertaken to draw attention to social or environmental issues.

Courts generally apply heightened scrutiny when the defense arises in the context of protests. Even when the underlying cause is compelling, the law requires a direct connection between the illegal conduct and the immediate prevention of harm.

Challenges in Asserting Necessity

Necessity is a demanding defense that rarely succeeds without careful preparation. The most common obstacles include:

• Immediacy of Threat
  Courts expect the danger to be immediate and specific, not a generalized concern or long-term problem.
• Legal Alternatives
  Judges will look closely at whether any lawful measures could have effectively addressed the threat.
• Proportionality
  The conduct must be narrowly tailored to avoid the harm and not exceed what was necessary.
• Judicial Skepticism
  Especially in protest cases, courts may view necessity arguments as attempts to justify political statements rather than prevent immediate harm.

Because of these factors, defendants should expect to present detailed evidence—such as affidavits, witness testimony, and records of prior efforts to address the threat legally—to establish their claim.

How Our Firm Approaches Necessity Defenses

At the Law Office of Erin Bradley McAleer, we understand that some cases require nuanced defenses grounded in compelling human circumstances. If you believe your actions were necessary to prevent serious harm, our legal team can help you:

• Evaluate Whether Necessity Is Legally Viable
  We will review the facts, relevant law, and case precedents to assess whether your situation meets the criteria.
• Gather and Preserve Evidence
  We will work to compile documents, witness statements, and expert opinions to support each element.
• Develop Pretrial Strategy
  Our attorneys will prepare motions and arguments to persuade the court that the defense should be heard by a jury.
• Present a Persuasive Case
  If the defense is allowed, we will build a clear, fact-based narrative showing why your actions were reasonable and justified.

The necessity defense is a narrow but important exception to criminal liability. While it is not available in most cases, it can be an essential protection for individuals who act under extraordinary circumstances to prevent serious harm.

If you have been charged with a crime and believe your actions were necessary to avoid greater danger, contact the Law Office of Erin Bradley McAleer today. We will help you understand your options, protect your rights, and advocate for your defense every step of the way.