On the 23rd or 24th of July 1884, three sailors and their 17-year old cabin boy, Richard Parker, faced the music — things were looking grim. The yacht they had been sailing, from England to Australia, had made its way to the bottom of the sea on the 5th — odd, given that the weather was not extreme. Since then they had shared two tins of turnips and a raw sea turtle. They had no water, nor had they had any since taking to the lifeboat. Having failed to catch any rainwater they were drinking their own urine. Richard Parker and possibly Stephens, had by then experimented with drinking seawater — both were sick, Parker gravely so.1
About a week earlier, the four men: Dudley, Brooks, Stephens, and Parker, had discussed drawing straws to choose a sacrificial victim—a victim whose life would be taken that the others might live. Around the 21st the debate intensified. On the 23rdor 24th, Dudley advised the others that it was time to draw lots. Brooks dissented. By then, Parker, the cabin boy, had lapsed, or was lapsing, into a coma.1
The next day, with Stephens holding Parker’s legs, Dudley sank his penknife into Parker’s jugular —Parker did not struggle. Later, Dudley would say that Brooks had consented… Brooks would disagree.1
The men fed on Parker’s flesh and blood. Dudley and Brooks consumed the most, Stephens very little. The three eventually managed to catch some rainwater.1
Later, Dudley would describe the scene, “I can assure you I shall never forget the sight of my two unfortunate companions over that ghastly meal we all was like mad wolfs who should get the most and for men fathers of children to commit such a deed we could not have our right reason.”1]
Four or five days later, on the 29th, the crew sighted a sail. A German vessel rescued them and dropped them off in England on the 6th of September.1
All three men gave candid statements of the shipwreck and their subsequent actions. Why shouldn’t they? They believed themselves protected by a ‘Custom of the Sea’. The men were jailed for about 12 days. The British Home Office was determined to try them for murder. The charges against Brooks were dropped that he might function as a witness for the prosecution. There is no evidence Brooks was informed of this strategy beforehand.
The Judge for the trial was Baron Huddleston and he was determined to accomplish two things: First that the necessity defense be tested, second that Dudley and Stephens be found guilty. It was to be an unusual trial, as we shall see.1
It’s the idea that in some situations, a person may be compelled, by necessity, to commit a crime.1
Necessity is not recognized as a defense for murder in either the US, or the UK. There are cases where the defense has been successfully argued in favor of an action that would necessarily result in death, but not murder. It is also not available as a defense against theft in the US.
“Two mountain climbers were attached to each other by a rope. One slipped, but was caught dangling at the end of the rope. The partner, despite great efforts, was unable to pull the dangling climber to safety. If the rope was left uncut, the secure climber would soon tire and both would plunge to their death.”2
The lawyers who created this hypothetical example, argued that it was indeed legitimate for the secure climber to cut the dangling climber free, even knowing he would die.4 Interestingly, this very scenario later happened at 19,000 feet in the Andes. However, the climber who was left to fall, survived. He later said his climbing partner, in cutting him loose, had made the right decision.4,5
The Wikipedia article on necessity states: “Generally, the defendant must affirmatively show (i.e., introduce some evidence) that (a) the harm he sought to avoid outweighs the danger of the prohibited conduct he is charged with; (b) he had no reasonable alternative; (c) he ceased to engage in the prohibited conduct as soon as the danger passed; and (d) he did not himself create the danger he sought to avoid.”2
Lawyers and philosophers have long been intrigued by the ramifications of taking a life from necessity. Many thought experiments have been devised and argued. Here are a couple:
Conjoined twins — those attached to each other—often share only one good heart between the two of them. Often it works out that if the twins are surgically separated, one will live, the other will die, and if not separated, both will die.
In 1977, just such a choice faced a devout Jewish couple — sacrifice one twin, or lose both. The were not willing to proceed absent rabbinic approval. The nurses at the Catholic hospital where the surgery would be done, refused to take part without assurance from the archdiocese that such a procedure was morally acceptable. The surgeon who was to do the surgery if the parents and the nurses consented, insisted on judicial approval and legal immunity from any possible charge of homicide. This surgeon, Dr. C. Everett Koop would go on to become the Surgeon General of the United States. What a case! Judaism, Christianity, and the US legal system all cooperating to solve a classic ethical dilemma.
The rabbis gave two analogies to illustrate their reasoning, the second of which will be related here — the first is similar to the Plank of Carneades (above).
The rabbis imagined a caravan set upon by bandits who demanded that one specific person be turned over in exchange for letting the rest live. The rabbis reasoned that since that individual was already “destined for death”, there was nothing immoral about revealing his identity to the bandits.
The Catholic authorities said the separation could be justified, even knowing it meant death for one of the twins.4,5They referenced Thomas Aquinas’ doctrine of double effect.8 That doctrine, roughly stated, says that if one intends to do some good act, but there is an unavoidable evil side effect that will result from doing that good act, one may still do the good act as long as the the good outweighs the evil, and the actor does not intend the evil, but only the good. An oft given example is that of a terminal patient, in great pain, who is prescribed analgesics for pain relief, even if there is a risk the drugs will shorten his life.
A three judge panel heard the case. They did not buy the lawyers first argument — that since there was only one heart, there was only one person, i.e. the twin who was likely to survive separation. The lawyers then offered up the thought experiment of the two climbers and the rope. The judges allowed that line of reasoning. They deliberated only minutes before ruling that the surgical separation could proceed. Unfortunately for the curious, they did not provide an opinion to go with their decision. The surgeons successfully separated the twins—the stronger twin survived as expected, but died inside of three months.
To make a long story short, the judge — Baron Huddleston — got the decision he wanted in a somewhat questionable manner. There were further hearings in London and the two men were convicted of murder — a finding that called for the death penalty, however a recommendation of mercy was attached. In the end the men were sentenced to six months imprisonment. Dudley never considered his punishment just. See item 4 on the ‘Sources’ list for a very good description of the trial, and all the shenanigans attendant to it.
The result of the whole affair was that necessity was ruled out as defense for murder. And so it remains to this day in the UK, and the US.
Though necessity is not a defense to murder, in practice, if necessity is readily apparent to the judge and jurors, the sentences handed down tend to be less severe.
Disclaimer: I’m not a lawyer. I haven’t studied law. Don’t rely on a non-expert like me.
Sources:
copyright 2014 by Brent Farwick