Commonwealth v. Markum – Pennsylvania
Nature of the Case
This case involves the rarely used and rarely successful defense of justification. The defendants asserted that they were justified in their unlawful conduct because it was the best option available to them.
Facts
On August 10, 1985 as part of an antiabortion demonstration, several protesters (Markum et al., Ds) forced their way into the Northeast Women’s Center abortion clinic. They refused to leave when requested and were finally removed by police, but not before damaging medical equipment and vandalizing the property of the clinic. Markum et al. asserted the defense of justification. Markum et al. were charged and convicted of defiant trespass. The trial judge refused to allow expert testimony on the defense and the defendants appealed.
Issue
- May a defendant assert the defense of justification if the perceived harm is a legal activity?
Holding and Rule of Law
- No. A defendant may not assert the defense of justification if the perceived harm is a legal activity.
For a defendant to assert the defense of justification the defendant must show that: 1) the actor was faced with a clear and imminent harm, 2) the defendant had a reasonable belief that he would be preventing harm, 3) there was no legal alternative for the defendant’s actions and 4) the legislature or the courts have not precluded the defense. All four elements must be satisfied for the defense of justification to succeed. This defense is often called the lesser of two evils.
Markum et al. assert that if they had not trespassed upon the property, children would have been aborted. If abortion was illegal, then this argument may work. However, the state of Pennsylvania has sanctioned abortions and abortions are a federally protected constitutional right. It is a valid medical procedure and therefore there is no clear or imminent harm and there is no need for the prevention of harm. In addition, there are legal means to protest abortions without trespass. Most importantly, the legislature of this state has permitted abortions to take place, so it has precluded the defense of justification.
Disposition
Affirmed.
Concurring and Dissenting (McEwen)
Defendants’ arguments support the defense of justification on the first three issues, but not the fourth prong.
Dissent (Tamilla)
Abortion is a qualified right. Since viability is the test that is used in Roe v. Wade, it is possible that the protesters were trying to prevent abortions that may have been taking place after viability. The defendants were denied the opportunity to present evidence that they were trying to prevent these illegal abortions, so the justification defense may have worked.