concurring.
To me this case turns on the premise that a defendant has a constitutional right to a Jury trial. Under our system of government the legislature has the authority to pass laws. At trial the judge has the duty to tell the jury what the law is. It is the jury's job to determine if the defendant violated the law. In my view Perrin was entitled to have a jury determine whether he committed the crime of custodial interference.
A person commits the crime of custodial interference if, knowing that he lacks the authority to do so, he takes or keeps a child from a lawful custodian "with intent to hold the child ... for a protracted period." 1
Perrin's defense was that he did not intend to hold his daughter, B.C., for a protracted period of time. According to Perrin, he believed that his daughter was being physically abused and that his only option was to keep B.C. until he could obtain help to prevent the abuse. Perrin claimed his intent was not to abscond with B.C. or to be gone for a protracted period of time. He told Judge Smith that the longest period of time he intended to keep B.C. away was three or four months. His intent was to seek help to stop the abuse. Judge Smith ruled that, even if a jury believed Perrin's defense, Perrin would be guilty of custodial interference as a matter of law because the time that Perrin had been gone was a "protracted period ." He therefore told Perrin that he would not allow Perrin to present this evidence in a jury trial. Perrin subsequently waived his right to a jury trial based upon Judge Smith's ruling that he would not be able to present the reasons why he left with B.C. and to explain why he was gone for so long.
Judge Smith based his ruling on our decision in Gerlach v. State,2 which involved the offense of custodial interference. But I see significant distinctions between Gerlack and this case. Gerlach's former husband had custody of her daughter Angela.3 Gerlach had visitation rights.4 Gerlach and her former husband were involved in an ongoing custody dispute.5 Gerlach offered to testify "that she had little faith in judicial proceedings as a means for resolving custody disputes." 6 She was concerned that the judge would rule against her.7 She accordingly fled with her daughter to another state where she hid for over a year.8 From Ger-lach's offer of proof it appears that she intended to hide her daughter from her former husband and the authorities for as long as possible. She never testified that she had any intent to resolve the custody problem other than by keeping her daughter away from her former husband.
Gerlach attemfited to raise the defense of necessity. The defense of necessity is an affirmative defense where the defendant must show that the act charged was done to prevent a significant evil, that there was no adequate alternative, and that the harm *27caused was not disproportionate to the harm avoided.9 Where a defendant has an adequate remedy at law, she is not entitled to the defense.10 The trial judge ruled that Gerlach was not entitled to present the defense of necessity.11 After she was conviet-ed, Gerlach appealed. We concluded that the trial judge did not err in entering a protective order that precluded Gerlach from raising the necessity defense at trial.12
It is generally difficult for a defendant to establish a necessity defense. And there are many decisions in which appellate courts have upheld the trial court's refusal to instruct on the necessity defense.13 Gerlach had a difficult case for claiming necessity. She had a remedy at law-she was involved in an ongoing custody battle in court. She thought she was going to lose. So she left, apparently forever if possible She never gave any indication that she intended to pursue any legal remedies. It is therefore not surprising that this court upheld the trial judge's ruling that Gerlach's offer of proof was insufficient as a matter of law to establish the affirmative defense of necessity.
Perrin's case is different. Perrin did not rely on the defense of necessity. He pointed out that in order to convict him of custodial interference, the State had to prove, as an element of the offense, that he intentionally kept the child from her lawful custodian for a "protracted period." This is an element of the offense that the State had to prove beyond a reasonable doubt.
The parties in Gerlach apparently never mentioned this element of the offense.14 But this court addressed the "protracted period" element of the offense in a footnote to the decision. We offered a potential definition of "protracted period," stating:
If the term "protracted period" is ultimately interpreted to mean "an unreasonably long period under all the cireumstances," a jury may then be required to consider the defendant's reasons for withholding the child in determining whether the child was in fact withheld for a protracted period.[15]
We concluded that it was unnecessary for us to resolve this issue and that, in any event, Gerlach's retention of her daughter for over a year "would appear to satisfy the 'protracted period' requirement, however it is defined." 16
It seems to me that there are a number of things to consider when evaluating the discussion about the "protracted period" element of custodial interference in the Gerlach footnote. First, it seems apparent that Ger-lach never contended that she did not intend to keep her daughter from her former husband for a "protracted period." This issue was never raised in the trial court or on appeal. Furthermore, looking at Gerlach's offer of proof, it appears that she fully intended to keep her daughter away from her former husband for as long as possible. It is therefore not surprising that this court concluded, as a matter of law, that Gerlach intended to keep the child for a "protracted period." Gerlach understandably conceded the issue.
But the footnote does appear to be helpful in suggesting that "protracted period" means "an unreasonably long period under all the circumstances." 17 And the footnote appears to predict that a jury would ultimately "be required to consider the defendant's reasons for withholding the child in determining whether the child was in fact withheld for a protracted period." 18
*28Perrin asserted that he did not intentionally keep his daughter from her mother for a protracted period of time. He specifically asserted that his intent was not to abscond with his daughter or to be gone for a protracted period of time. He represented that the longest he intended to keep his daughter was for three or four months. He intended to seek help to protect his daughter from physical abuse.
The question that Perrin raised in his offer of proof was whether he intentionally kept his daughter from her lawful custodian for a "protracted period." The question is, using the Gerlach definition, whether he kept her for "an unreasonably long period under all the cireumstances." "19 Whether Perrin intended to keep his daughter for a "protracted period" is an element of the offense and a factual question that should be decided by a jury. The jury would "be required to consider the defendant's reasons for withholding the child in determining whether the child was in fact withheld for a protracted period." 20 I agree with Judge Stewart that the court could have instructed the jury that Perrin was required by law to avail himself of legal remedies if possible. Under our system of law, Perrin was entitled to have a jury determine if he violated the law.
. AS 11.41.330(a).
. 699 P.2d 358 (Alaska App.1985).
. Id. at 359.
. Id.
. Id.
. Id.
. Id. at 359-60.
. Id. at 359.
. Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981); Gerlach, 699 P.2d at 360.
. Schnabel v. State, 663 P.2d 960, 966 (Alaska App.1983).
. Gerlach, 699 P.2d at 360.
. Id. at 363.
. See, e.g., Cleveland, 631 P.2d at 1081; Nelson v. State, 597 P.2d 977, 980 (Alaska 1979); Wells v. State, 687 P.2d 346, 350-51 (Alaska App.1984); Schnabel, 663 P.2d at 966.
. Gerlach, 699 P.2d at 360 n. 3.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id.