How Necessary Is the Necessity Defense? A Look at the Scott Roeder Trial and the Misuse of Mitigating Justifications

Valerie Lubanko, Government Law Review member          

            On Friday, January 29, 2010, it took jurors only thirty-seven minutes to convict Scott Roeder of first-degree murder for the death of George Tiller, a doctor who performed late term abortions.[1]  Roeder, a vehement pro-life abortion opponent, admitted during trial to planning the murder of Dr. Tiller for several years, and that he had brought a gun to the church Dr. Tiller attended on Sundays until he finally succeeded in shooting the Doctor in the head on May 31, 2009.[2]  Roeder was his only witness in his defense,[3] so it would seem that this was an open-in-shut case for the jurors to decide whether Roeder’s premeditated shooting met the elements of the crime.  However, this case has not only fueled the debate in the political and religious worlds between pro-life and pro-choice supporters, but it has also raised eyebrows in the legal world as well.  This is because Roeder tried to invoke the necessity defense to have the charges mitigated from first-degree murder down to voluntary manslaughter.[4]

            Under the Model Penal Code, the necessity defense is categorized as a “Choice of Evils” justification, in which the defendant commits a crime in order to avoid a “harm or evil” that is greater than the one being committed.[5]  Many states follow the Model Penal Code in its treatment of the necessity defense, while other states, such as New York, do not recognize the offense if the defendant is “in any way at fault for ‘occasion[ing]’ or ‘develop[ing]’ the necessity.”[6]  (The Model Penal Code presents a lower bar for the defendant, as it only denies the defense if the defendant was “reckless” or “negligent” in creating the situation that requires the defense.)[7]  Kansas[8], like many other states, has not adopted the necessity defense in any respect.[9]   

Regardless of this, Roeder still invoked the defense, stating that the he shot Dr. Tiller “[b]ecause of the fact preborn children’s lives were in imminent danger.”[10]  Sedgwick County Judge Warren Wilbert, who was the presiding judge in this case, ruled that Roeder’s necessity defense could not be used because “the harm the defendant claims to be avoiding through his . . . actions is a constitutional and legal activity, and the defendant broke the law.”[11]  However, Judge Wilbert did “leave the door open” regarding Roeder’s self-defense argument, in which claimed he was justified in his actions because he shot Dr. Tiller in defense of another (the “preborn children”).[12]  Judge Wilbert stated that he needed more evidence to rule on the matter.[13]  As it played out, the only evidence that was presented was Roeder’s own testimony that he planned and shot Dr. Tiller.  Because of this, Judge Wilber shut the evidentiary door he opened by denying Roeder’s request to give the jury an instruction to take into account Roeder’s motives in shooting Dr. Tiller, and only instructed them on the elements of first-degree murder.[14]   

            Even though Judge Wilbert eventually ruled against Roeder’s justification defense, the door he allowed open may have invited a host of arguments that will distort and pervert the law of justification as a mitigating doctrine. In fact, Harvard Law Professor Alan Dershowitz states that Roeder’s defense is “an absurd approach to the law that would open the door to the most dangerous extension of the defense of imperfect necessity.”[15]  More generally, it has been written that “[n]ecessity inherently privileges any legal violation that provides an individual or social benefit without imposing corresponding harm on another person.”[16]  If this is the case, it would seem that our legal system should not offer such an option as a defense, as the Scott Roeder’s of the world may continue to try and abuse it.    

Judge Wilbert’s denial of Roeder’s necessity defense rested on the argument that Roeder was trying to prevent a constitutional and legal activity by committing a criminal act.  It is well known that many people, including politicians and Supreme Court Justices, do not agree that abortions should be a constitutionally protected right that falls within the right to privacy.  Roe v. Wade[17] is constantly under attack, and there is legitimate fear that a Supreme Court that is increasingly becoming more conservative may overrule the case’s doctrine (the Supreme Court has reviewed the issue of abortion two dozen times since Roe was decided).[18]  What happens then when a judge or a state legislature decides that abortion is against the law, and that abortion does impose a great evil on society?

 This reason allows too great a risk that individuals will allow their religious and moral beliefs to cloud their judgment when deciding which evil to society is greater.  Randall Terry, founder of Operation Rescue,[19] stated that the trial was a “scam” because he believed that Roeder should have been allowed to argue his necessity and self-defense justification arguments.[20]  A judge may have views similar to Randall Terry, especially when they are elected officials and preside in a jurisdiction that is predominantly conservative and pro-life.  So far, the pro-life supporters that invoked the necessity defense or other justification when charged with crimes relating to their anti-abortion agenda have failed.[21]  However, this does not mean that another judge may open another door to let them come stampeding through.  If the necessity defense and other justifications are allowed to be utilized the way Roeder attempted to do so in front of a jury of his peers, then it may take more than thirty-seven minutes to return a verdict.  In a criminal case, all it takes is for one juror to side with the defendant to have a hung jury, which would allow for the foreshadowed “dangerous extension”[22] of the necessity defense.

Edited by Sara Mase & Stephen Dushko.

[1] Monica Davey, Arbotion Foe Found Guilty in Doctor’s Killing, N.Y. Times, Jan. 29, 2010, at A12, available at

[2] Id.

[3] Id.

[4] Id.; Anti-Abortion Activist Can’t use ‘Necessity Defense’ in Slaying, CNN, Dec. 22, 2009,

[5] MPC § 3.02(1)(a) (2009).

[6] Marc O. DeGirolami, Culpability in Creating the Choice of Evils, 60 Ala. L. Rev. 597, 609 (2009) (citing N.Y. Penal § 35.05(2) (McKinney’s 2004)).

[7] MPC § 3.02(2).

[8] The state where the crime occurred.

[9] DeGirolami, supra note 6, at 609 n. 61.

[10] Anti-Abortion Activist Can’t Use ‘Necessity Defense’ in Slaying, CNN, Dec. 22, 2009,

[11] Id.

[12] Id.

[13] Id.

[14] Davey, supra note 1, at A12.

[15] Emily Bazelon, Defining Murder Down: Why Does Dr. Tiller’s Killer Get to Argue That His Alleged Crime Was Justified, Slate, Jan. 13, 2010,

[16] DeGirolami, supra note 6, at 622.

[17] 410 U.S. 113 (1973).

[18] Alex Markels, Supreme Court’s Evolving Rulings on Abortion, NPR, Nov. 30, 2005,

[19] An anti-abortion group based in Kansas.

[20] Davey, supra note 1, at A12.

[21] Id.

[22] Bazelon, supra note 15.

4 thoughts on “How Necessary Is the Necessity Defense? A Look at the Scott Roeder Trial and the Misuse of Mitigating Justifications”

  1. I found your blog because the “possibly related posts” gave a hit over on my Blog Stats page. I wrote the very brief Scott Roeder Guilty.

    Anyway, I’m not an attorney and I don’t even play one on the intertubes. I believe murder is murder an every murderer should be treated the same. None of this Murder 1, Murder 2, Man 1, Man 2 business. And none of this “you killed a special person” business in hate-crimes legislation or in the event of murdering a police officer. Murder is murder and I’m a Death Penalty proponent.

    That being said, I am also very much pro-life. (And I appreciated your use of “pro-life” but you also used “anti-abortion” where “pro-life” belongs. Does anybody who uses “anti-abortion” use “pro-abortion” as well?) If we are going to have varying degrees of murder and we are going to have “lesser of two evils” type murder, then that will definitely be a factor in opening the can of worms.

    I believe that, since life begins at conception, abortion is murder (other than to prevent the imminent death of the mother). But it’s not codified as murder. It’s codified as a non-murder medical procedure. I’ll be very clear here. I do not believe in murdering abortion doctors and I do not support such action in any way, shape, or form.

    But with the various striations in murder law, I also believe Roeder’s disallowed defense shouldn’t have been disallowed.

    A child can live outside the womb at 24 weeks, and on occasion, earlier. Laws are already on the books to convict someone of two counts of murder if the person murders a pregnant woman. What I’m seeing is a “that’s different” approach to various laws and legal renderings.

    Again, Roeder was convicted of murder, as he should have been. But that’s because the various striations in the law should not exist, not because Roeder shouldn’t have been allowed to argue his position within those striations.

  2. re: John Hitchcock’s response

    So you would equate someone like Roeder with a driver that accidentally hits and kills a pedestrian? Not all homicides are the same. The NYS penal law has multiple sections dealing with the complicated scenarios that arise. The distinctions between murder and manslaughter serve a significant societal function of providing a sliding scale of culpability and punishment.

    Allowing an individual to assert a defense based on a higher moral or religious calling to mitigate the charge will certainly screw with the system. Could you imagine a terrorist asserting that he or she was justified in blowing up a building because of a religious/moral calling? Surely this charge shouldnt be mitigated to a lower degree of homicide, right? As the author asserts, “the Scott Roeder’s of the world” will most defintely seek to use and abuse this defense.

    That we have various striations in the homicide statutues certainly does not justify just adding one more for the sake of it. Regardless of your views on abortion, look at the BROAD implications of this necessity defense. Failing to do that makes you just about as narrow minded as Roeder.

  3. Mr Bluth, there are accidents which should not be considered murder. Drug-free, alcohol-free, inexperience should not be considered murder. Drugged-up? That’s your problem. BAC over-limit? That’s your problem. But accidents happen where the driver shouldn’t be held accountable. I have a relative who was convicted of vehicular manslaughter when a minor. That charge should never have been made. There was no irresponsibility or illegality involved whatsoever, other than inexperience, panic and the resultant loss of control. That’s not murder. That’s an accident.

    If you had read what I wrote, you would’ve already known I do not equate murderers with people involved in accidents. Those are two completely different things, in toto. Had you read what I wrote, you would’ve also noted that I declared Roeder worthy of the conviction he got.

    Anyone who equates a terrorist with a criminal and chooses to use the criminal justice system is not in tune with reality nor is he in tune with the rules of war.

    Your last paragraph makes the false suggestion I’m adding more strata to the striations when I am looking specifically at the striations. Furthermore, your last paragraph contains an unjustified personal attack against me. I suspect that, since you’re reading and responding on a legal blogsite, you’re usually better than that. In the future, do try to do your proper research and do try to avoid ad hominem. Otherwise, you become a lesser man.

  4. The problem with the “it was an accident” excuse is that ignorance is not an excuse for the law. I’m sure it’s not easy for any family to go through an accidental death like that (for both sides of the legal battle). However, the definition of a homicide in NY is “conduct which causes the death or a person.” It may not be an intentional murder but it does fall witin the realm of our penal law.

    New York’s penal law sets up a sliding scale precisely to avoid everyone from saying “I’m sorry, it was an accident, i didnt mean it.” For an adult, a class C or D felony such as vehicular manslaughter in the 1st or 2nd degree does not carry a mandatory prison sentence (but if you repeat the offense, you’re probably going to jail). You may think the charge should never have been made but our system is set up to not just let these things go.

    I read what you wrote a few times and sought to convey that our society needs these varying degrees of crimes- like for homicide. I did not say you equated a murderer like Roeder to the person who accidentally hits and kills a pedestrian but used that example merely to demonstrate that charges against someone with premeditated intent to kill and someone who killed someone by accident should be different.

    What I ultimately disagree with you on is not just the need for a blanket murder charge (or however you’d lable the “murder is murder an every murderer should be treated the same” crime) but that defendant’s -like Roeder- should be allowed to use a necessity defense as a means to mitigate their charge.

    I dont quite understand your assertion about terrorists but in my book they are most definitely criminals (attempt, conspiracy, possession of weapons, etc etc- the list of their offenses can go on for miles).

    By allowing Roeder to use a defense that doesnt currently exist in Kansas, the court would have been adding more strata to the available criminal defenses.

    Also, “you”/ “your” generalized and not intended to focus on you personally- sorry for that confusion.

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