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Oregon Revised Statutes

Or. Rev. Stat. § 161.200 (2026)

Choice of evils

✓ current as of May 2026
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      161.200 Choice of evils. (1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when:

      (a) That conduct is necessary as an emergency measure to avoid an imminent public or private injury; and

      (b) The 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 sought to be prevented by the statute defining the offense in issue.

      (2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. [1971 c.743 §20]

 

      Note: See note under 161.015.

Notes of Decisions
Cited in 61 cases (14 in the last 5 years), 1975–2026 · leading case: State v. Clowes, 801 P.2d 789 (Or. 1990).
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State v. Clowes, 801 P.2d 789 (Or. 1990). · cites it 25× “The question presented in this case is whether the statutory defense of choice of evils, ORS 161.200, 1 is available to anti-abortionists who were charged with criminal trespass in the second degree, ORS 164.”
State v. Clowes, 785 P.2d 1071 (Or. Ct. App. 1990). · cites it 68× “245, for blocking the doors of the Lovejoy Surgicenter with the objective of preventing women from entering for the purpose of obtaining abortions.”
State v. Oneill, 303 P.3d 944 (Or. Ct. App. 2013). · cites it 23× “In light of the foregoing evidence, defendant requested a jury instruction based on ORS 161.200, the statutory choice of evils defense, on the ground that her conduct was necessary as an emergency measure to avoid imminent injury by the officers.”
State v. Dewhitt, 368 P.3d 27 (Or. Ct. App. 2016). · cites it 8× “480(3) (2015), and ORS 161.200, and the state moved to bar defendant from doing so.”
State v. Phillips, 503 P.3d 1282 (Or. Ct. App. 2022). · cites it 8× “Defendant properly raised the statutory choice-of-evils defense, ORS 161.200, but the trial court did not allow defendant to present the defense and did not instruct the jury on it.”
State v. Clowdus, 530 P.3d 525 (Or. Ct. App. 2023). · cites it 8× “180(1)(a), and choice of evils, ORS 161.200, the trial court erred in refusing to instruct the jury on those defenses as he had requested.”
State v. Miles, 104 P.3d 604 (Or. Ct. App. 2005). · cites it 9× “319(1) and the “choice-of-evils” defense provided in ORS 161.200. We affirm. We review the record to determine whether defendant presented any evidence to support the defenses he sought to assert and evaluate that evidence in the light most favorable to defendant.”
State v. Freih, 348 P.3d 324 (Or. Ct. App. 2015). · cites it 7× “1 On appeal, he assigns error to the trial court’s pretrial ruling that he was not entitled to raise a choice-of-evils defense under ORS 161.200, and would not be entitled to a jury instruction on the choice-of-evils defense; defendant sought to defend against the charge on the…”
State v. Moreno, 402 P.3d 767 (Or. Ct. App. 2017). · cites it 4× “Based on that evidence, defendant sought to present the defense of choice of evils, ORS 161.200, which provides: “(1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law,…”
State v. Marsh, 64 P.3d 1141 (Or. Ct. App. 2003). · cites it 4× “He did not know whether they were in school or someplace else. There is no evidence that he had any idea when they would return to the house.”
State v. Boldt, 841 P.2d 1196 (Or. Ct. App. 1992). · cites it 4× “To establish the choice of evils defense under ORS 161.200, defendant had to offer evidence that would be sufficient for the jury to find that: (1) his conduct was necessary to avoid a threatened injury; (2) the threatened injury was imminent; and (3) it was reasonable for him…”
State v. Whisman, 575 P.2d 1005 (Or. Ct. App. 1978). · cites it 6× “ORS 161.200. 1 Defendant was charged with escape in the third degree from the custody of his probation officer on August 8, 1977.”
Show all 61 citing cases →
— Or. Rev. Stat. § 161.200(1) — 17 cases
State v. Clowes, 785 P.2d 1071 (Or. Ct. App. 1990). “245, for blocking the doors of the Lovejoy Surgicenter with the objective of preventing women from entering for the purpose of obtaining abortions.”
State v. Clowes, 801 P.2d 789 (Or. 1990). “The question presented in this case is whether the statutory defense of choice of evils, ORS 161.200, 1 is available to anti-abortionists who were charged with criminal trespass in the second degree, ORS 164.”
State v. Dewhitt, 368 P.3d 27 (Or. Ct. App. 2016). “480(3) (2015), and ORS 161.200, and the state moved to bar defendant from doing so.”
State v. Miles, 104 P.3d 604 (Or. Ct. App. 2005). “319(1) and the “choice-of-evils” defense provided in ORS 161.200. We affirm. We review the record to determine whether defendant presented any evidence to support the defenses he sought to assert and evaluate that evidence in the light most favorable to defendant.”
State v. Clowdus, 530 P.3d 525 (Or. Ct. App. 2023). “180(1)(a), and choice of evils, ORS 161.200, the trial court erred in refusing to instruct the jury on those defenses as he had requested.”
— Or. Rev. Stat. § 161.200(1)(a) — 10 cases
State v. Clowes, 801 P.2d 789 (Or. 1990). “The question presented in this case is whether the statutory defense of choice of evils, ORS 161.200, 1 is available to anti-abortionists who were charged with criminal trespass in the second degree, ORS 164.”
State v. Phillips, 503 P.3d 1282 (Or. Ct. App. 2022). “Defendant properly raised the statutory choice-of-evils defense, ORS 161.200, but the trial court did not allow defendant to present the defense and did not instruct the jury on it.”
State v. Clowdus, 530 P.3d 525 (Or. Ct. App. 2023). “180(1)(a), and choice of evils, ORS 161.200, the trial court erred in refusing to instruct the jury on those defenses as he had requested.”
State v. Olson, 719 P.2d 55 (Or. Ct. App. 1986).
State v. Heaton, 483 P.3d 1209 (Or. Ct. App. 2021).
— Or. Rev. Stat. § 161.200(1)(b) — 3 cases
State v. Clowdus, 530 P.3d 525 (Or. Ct. App. 2023). “180(1)(a), and choice of evils, ORS 161.200, the trial court erred in refusing to instruct the jury on those defenses as he had requested.”
State v. Olson, 719 P.2d 55 (Or. Ct. App. 1986).
State v. Clowdus (Or. Ct. App. 2023).
— Or. Rev. Stat. § 161.200(2) — 2 cases
State v. Clowes, 785 P.2d 1071 (Or. Ct. App. 1990). “245, for blocking the doors of the Lovejoy Surgicenter with the objective of preventing women from entering for the purpose of obtaining abortions.”
State v. Clowes, 801 P.2d 789 (Or. 1990). “The question presented in this case is whether the statutory defense of choice of evils, ORS 161.200, 1 is available to anti-abortionists who were charged with criminal trespass in the second degree, ORS 164.”
— Or. Rev. Stat. § 161.200(l)(a) — 4 cases
State v. Clowes, 801 P.2d 789 (Or. 1990). “The question presented in this case is whether the statutory defense of choice of evils, ORS 161.200, 1 is available to anti-abortionists who were charged with criminal trespass in the second degree, ORS 164.”
State v. Jackson, 575 P.2d 1001 (Or. Ct. App. 1978).
State v. Clowes, 785 P.2d 1071 (Or. Ct. App. 1990). “245, for blocking the doors of the Lovejoy Surgicenter with the objective of preventing women from entering for the purpose of obtaining abortions.”
State v. Neubauer, 683 P.2d 136 (Or. Ct. App. 1984).
— Or. Rev. Stat. § 161.200(l)(b) — 1 case
State v. Neubauer, 683 P.2d 136 (Or. Ct. App. 1984).
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