State v. Clowes

¶1specially concurring.

¶2The majority is correct in holding that the choice of evils defense is not available to defendants. It is also correct in *279reaching that result on the ground that application of the defense would be “inconsistent … with some other provision of law.” ORS 161.200(1). It unfortunately fails, however, to specifically reject the theory that abortion is not a “public or private injury” under the statute, an approach advanced by Judge Graber in her special concurrence. In my view, the majority should have foreclosed any future reliance on that approach, because it unnecessarily restricts the availability of the defense, while implicitly denying that a human fetus may have legal value. I write separately to express that concern and to set forth my own views on the proper application of ORS 161.200.

¶3The rationale of the choice of evils defense is that “the law ought to promote the achievement of higher values at the expense of lesser values[.]” LaFave & Scott, Criminal Law 382, § 50 (1972). Because the legislature cannot possibly foresee and provide exceptions for every situation in which a criminal law will conflict with a higher value, “sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” LaFave & Scott, supra. Recognizing that fact, the legislature has enacted the choice of evils defense, permitting the jury to weigh competing values “according to ordinary standards of intelligence and morality” in exceptional situations that the legislature has not itself foreseen and decided. However, “when the law has dealt explicitly with the specific situations that present a choice of evils,” the defense does not apply. City of St. Louis v. Klocker, 637 SW2d 174, 177 (Mo App 1982); see also LaFave & Scott, supra. When the legislature already has made specific choices between competing values, there simply is nothing for the jury to decide.

¶4Applying the choice of evils defense in defendants’ case would be “inconsistent … with some other provision of law.”1 ORS 161.200(1). Consistently with the United States *280Supreme Court’s decision in Roe v. Wade, 410 US 113, 93 S Ct 705, 35 L Ed 2d 147 (1973), the Oregon legislature has chosen not to regulate abortions in most respects. The legislature has weighed the competing values of fetal life and a woman’s right to privacy and determined that abortion should be permitted. Therefore, the legislature could not have intended abortion to be a type of harm that would justify breaking the law.

¶5I am deeply troubled, however, by the theory advanced by Judge Graber that, because abortion is conduct that is neither tortious nor illegal, it cannot constitute a “public or private injury” under the statute. That reasoning would withdraw the defense from defendants for whom it was meant to be available. Suppose, for example, that a medical student tried to prevent a policeman from moving an injured man because he believed that the man had a spinal injury that could be worsened by the move.2 Under Judge Graber’s view, assuming that the officer was acting reasonably, the student could not assert the choice of evils defense, because he was seeking to prevent conduct that was “neither unlawful nor tortious.”

¶6More dramatic examples are possible. Suppose that an individual obtains information that would prove that a man who is about to be executed is innocent. Unable to reach the governor or take other action in time, he attempts to stop *281the execution by forcing his way into the prison, knocking down anyone who gets in his way. He is attempting to prevent the lawful and non-tortious conduct of the executioner, conduct which has been given legal protection. Although, under Judge Graber’s analysis, the execution is not a “legal injury” under the statute, few would conténd that the legislature did not intend the choice of evils defense to apply in such a situation.

¶7In fact, under that view, one could not use the defense to justify “forcibly restraining a person infected with a highly contagious and dangerous disease” unless the ill person’s conduct was either tortious or illegal. Commentary to Proposed Oregon Criminal Code of 1971, § 20. It might be neither.3 Yet the legislature clearly intended that the defense be available in that situation, because it is given as an example of the statute’s proper application in Commentary to Proposed Oregon Criminal Code of 1971, § 20.4 It has long been clear that “[a] party is entitled to have his theory of the case presented to the jury if there is evidence to support such theory.” State v. Brown, 306 Or 599, 604, 761 P2d 1300 (1988) (quoting State v. Newlin, 92 Or 589, 594, 182 P 133 (1919)). The choice of evils defense should be available under its plain terms whenever it is not inconsistent with some other provision of law.5

¶8*282By arguing that there can be no “injury” if a defendant has violated an otherwise valid law on the basis of moral views of another’s legal conduct, Judge Graber would inject a defendant’s subjective motivations into the definition of what is a “public or private injury.” The fact that a defendant violates a law for moral reasons is relevant to subsection (l)(b), dealing with whether “[t]he threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury” or, as Judge Graber points out, to subsection (2), precluding consideration of the morality of the violated statute in deciding the justifiability of the illegal conduct. However, it is not relevant to whether that conduct constitutes a “public or private injury.” There are more legitimate bases upon which to deny the defense to defendants, and I see no reason to muddy an already complex area of the law with the special concurrence’s approach.

¶9Finally, the analysis creates troubling anomalies. First, if one may only justify preventing the conduct of another if it is wrongful, it is difficult to understand why he would need a defense at all. Second, Judge Graber’s position leads to the conclusion that one may justify trespass to save a VCR, because harm to property is “legal injury.” However, trespass to save what a defendant might view as human life is not justifiable, because destruction of a fetus is not a “legal injury,” at least not in an abortion clinic. Indeed, the argument implies that existence of a fetus has no legal value, a dubious and disquieting proposition.6 The reason that defendants are barred from asserting the choice of evils defense is not that there is no “private or public injury” to a fetus in an abortion. It is that our state, speaking through its democratically elected legislature, already has decided that a woman’s right to procreative freedom outweighs any injury that might exist.

¶10*283In short, it is unnecessary and, in my view, unwise to deny defendants an opportunity to assert the choice of evils defense to the jury on the basis that abortion is not a “legal injury.” That rationale could deprive some later defendant of an appropriate defense. Moreover, it is an unnecessary legal fiction with disturbing implications.