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UER Forum > UE Encyclopedia > Affirmative Defense (Viewed 5060 times)
Entry: Affirmative Defense
originally posted by Nightskye

[last edit 2/6/2012 3:45 PM by Opheliaism - edited 2 times]

Affirmative Defense

Just about all criminal codes worldwide have very general defenses to criminal charges built into the codes. Self-defense is a common one. An insanity defense is another. These defenses may serve to negate criminal charges brought against an individual.

Some US states have specific clauses in their trespass and/or burglary laws that can negate criminal charges against an individual charged with them (see list below).

An affirmative defense to trespass means a person responds to criminal charges with something along the line of, “Yes, I did it, but…(the building was abandoned)(I didn’t think the owner would mind)(I’m insane).”

Ok, that last one is probably a bad idea. But you get the picture.

The Wikipedia - http://en.wikipedi...ffirmative_defense - defines it similarly, “An affirmative defense is a category of defense used in litigation between private parties in common law jurisdictions, or, more familiarly, a type of defense raised in criminal law by the defendant. Affirmative defenses operate to limit or excuse or avoid a defendant's criminal culpability or civil liability, even if the factual allegations of plaintiff's claim are admitted or proven.”

The following US states have specific affirmative defenses to trespass charges:

AK – Alaska
The Alaska Statutes

Section 11.46.040 - Defense: emergency use of premises.
http://www.legis.s...geitems=%7Bbody%7D

In a prosecution under AS 11.46.300 , 11.46.310, 11.46.320, or 11.46.330(a)(1), it is an affirmative defense that

(1) the entry, use, or occupancy of premises or use of personal property on the premises is for an emergency in the case of immediate and dire need; and

(2) as soon as reasonably practical after the entry, use, or occupancy, the person contacts the owner of the premises, the owner's agent or, if the owner is unknown, the nearest state or local police agency, and makes a report of the time of the entry, use, or occupancy and any damage to the premises or personal property, unless notice waiving necessity of the report is posted on the premises by the owner or the owner's agent.


CT – Connecticut
General Statutes of Connecticut

Section 53a-110 - Affirmative defenses to criminal trespass.
http://www.cga.ct....htm#Sec53a-110.htm

It shall be an affirmative defense to prosecution for criminal trespass that: (1) The building involved in the offense was abandoned; or (2) the premises, at the time of the entry or remaining, were open to the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or (3) the actor reasonably believed that the owner of the premises, or a person empowered to license access thereto, would have licensed him to enter or remain, or that he was licensed to do so.

Section 53a-104 - Affirmative defense to burglary.
http://www.cga.ct....htm#Sec53a-104.htm

It shall be an affirmative defense to prosecution for burglary that the building was abandoned.


HI – Hawaii
2006 Hawaii Revised Statutes

Section 708-816 - Defense to trespass.
http://www.capitol.../HRS_0708-0816.htm

§708-816 Defense to trespass. It is a defense to prosecution for trespass as a violation of sections 708-814 and 708-815 that the defendant entered upon and passed along or over established and well-defined roadways, pathways, or trails leading to public beaches over government lands, whether or not under lease to private persons.


IL – Illinois
Illinois Compiled Statutes

Section 21-3 - Criminal trespass to real property.
http://www.ilga.go...al+Code+of+1961%2E

A person shall be exempt from prosecution under this Section if he beautifies unoccupied and abandoned residential and industrial properties located within any municipality. For the purpose of this subsection, "unoccupied and abandoned residential and industrial property" means any real estate (1) in which the taxes have not been paid for a period of at least 2 years; and (2) which has been left unoccupied and abandoned for a period of at least one year; and "beautifies" means to landscape, clean up litter, or to repair dilapidated conditions on or to board up windows and doors.


NE – Nebraska
Nebraska Revised Statutes

Section 28-522 - Criminal trespass; affirmative defenses.
http://uniweb.legi...p?page=s2805022000

It is an affirmative defense to prosecution under sections 28-520 and 28-521 that:

(1) A building or occupied structure involved in an offense under section 28-520 was abandoned; or

(2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or

(3) The actor reasonably believed that the owner of the premises or other person empowered to license access thereto would have licensed him to enter or remain; or


NJ - New Jersey
New Jersey Permanent Statutes

2C:18-3d - Defenses
http://lis.njleg.s...oftpage=Document42

Defenses. It is an affirmative defense to prosecution under this section that:

(1)A structure involved in an offense under subsection a. was abandoned;

(2)The structure was at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the structure; or

(3)The actor reasonably believed that the owner of the structure, or other person empowered to license access thereto, would have licensed him to enter or remain, or, in the case of subsection c. of this section, to peer.


PA – Pennsylvania
The Pennsylvania Code

Section 3503 - Criminal trespass.
http://members.aol...esPA/18.Cp.35.html

Defenses.- It is a defense to prosecution under this section that:

1. a building or occupied structure involved in an offense under subsection (a) of this section was abandoned;
2. the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or
3. the actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him to enter or remain.


Section 3502 - Burglary
http://members.aol...esPA/18.Cp.35.html

Defense.--It is a defense to prosecution for burglary that the building or structure was abandoned.


SD - South Dakota
South Dakota Codified Laws

Section 22-35-7 - Affirmative defenses to unlawful occupancy.
http://legis.state...te&Statute=22-35-7

It is an affirmative defense to prosecution under § 22-35-5 or 22-35-6 that:
(1) The premises were at the time open to members of the public and the person complied with all lawful conditions imposed concerning access to or the privilege of remaining on the premises; or
(2) The person reasonably believed that the owner of the premises, or other person permitted to license access to the premises, would have permitted him or her to enter or remain.


WA – Washington
Revised Code of Washington

Section 9A.52.090 - Criminal trespass — Defenses.
http://apps.leg.wa...spx?cite=9A.52.090

In any prosecution under RCW 9A.52.070 and 9A.52.080, it is a defense that:

(1) A building involved in an offense under RCW 9A.52.070 was abandoned; or

(2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or

(3) The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him to enter or remain; or

(4) The actor was attempting to serve legal process which includes any document required or allowed to be served upon persons or property, by any statute, rule, ordinance, regulation, or court order, excluding delivery by the mails of the United States. This defense applies only if the actor did not enter into a private residence or other building not open to the public and the entry onto the premises was reasonable and necessary for service of the legal process.


WY – Wyoming
Wyoming Statutes Annotated

Section 6-3-302 - Criminal entry; penalties; affirmative defenses.
http://michie.lexi...m&f=templates&2.0#

(a) A person is guilty of criminal entry if, without authority, he knowingly enters a building, occupied structure, vehicle or cargo portion of a truck or trailer, or a separately secured or occupied portion of those enclosures.

(b) It is an affirmative defense to prosecution under this section that:

(i) The entry was made because of a mistake of fact or to preserve life or property in an emergency;

(ii) The enclosure was abandoned;

(iii) The enclosure was at the time open to the public and the person complied with all lawful conditions imposed on access to or remaining in the enclosure; or

(iv) The person reasonably believed that the owner of the enclosure, or other person empowered to license access to the enclosure, would have authorized him to enter.

(c) Criminal entry is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

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