dissenting.
[¶ 26] I respectfully dissent. I disagree that in order to obtain a jury instruction on the competing harms defense Caswell had to demonstrate that the man who had followed her and then raped her earlier in the evening was still “in fact” following her when she drove to, and away from, the gasoline station.
[¶ 27] While I do not quarrel significantly with the recitation of facts in the opinion, I add a few more facts because in determining whether there is sufficient evidence to place an affirmative defense in issue, the evidence must be viewed in the light most favorable to the defendant. State v. Michaud, 1998 ME 251, ¶ 17, 724 A.2d 1222, 1230.
[¶ 28] Caswell’s testimony is replete with her expressions of fear that her attacker would follow her and “get ahold” of her again. Her fear was based upon the fact that he had followed her previously and made her go with him. When she finally escaped from the rapist, she felt sick and wanted to go home. Caswell was a heavy smoker and needed a cigarette to calm herself. When she stopped at the gasoline station, near her home, to buy cigarettes, she believed her attacker was following her. The two police officers she saw in the parking lot of the gasoline station were both men. She testified that she was not about to tell two strange men what had happened to her.
[¶ 29] Dr. Riñes, a clinical psychologist with experience in treating sexual assault victims, interviewed Caswell twice prior to the trial. In addition to testifying about Caswell’s “overwhelming need to escape” after the rape, he testified that she was frantic, and her judgment was suspended. He testified that this is tantamount to a psychotic state, and it was rational for her to fear further assault. Caswell’s history of being sexually abused as a child made the rape even more traumatic. Riñes further testified that Caswell’s addiction to nicotine was a powerful stimulus. She had a frantic need to get home, which is a place of refuge, where she could shower, use mouthwash, and be comforted by the home environment. Dr. Riñes testified that Cas-well told him that she continued to fear further rape even after she left the gasoline station, and in his experience, her fear was reasonable and consistent with that of other victims of sexual assault. He testified that the fact that Caswell did not want to disclose to the male police officers what had happened to her was consistent with the actions of other rape victims.
[¶ 30] I agree that a defendant’s subjective belief that her conduct is necessary to *382avoid the harm is not sufficient to generate a competing harms instruction. There must also be evidence that, in fact, the physical harm is imminently threatened. See State v. Poole, 568 A.2d 830, 831 (Me. 1990). However, we have never held that the competing harms defense requires that the defendant experience the actual conduct from which the defendant is fleeing. We only require that the threat of imminent harm exist. In this case the requirement that the threat of imminent harm actually exists is present. There is evidence that Caswell was chased after and raped a short time earlier. Although there is no evidence that the rapist was following her when she arrived at and departed from the gasoline station, the fact that he had followed after her earlier that evening is highly probative of the imminent nature of the threat that he would do so again. The existence of the imminent threat was reasonable because of what Caswell’s assailant had done to her earlier in the evening. I do not agree with the concurring opinion that the stop at the gasoline station broke the chain of events and caused the threat of imminent harm to disappear. The threat of imminent harm, both before and after Caswell stopped at the station, was created by the rapist’s actions that evening.6
[¶ 31] I strongly disagree with the assertion in the majority opinion that allowing the competing harms defense in this case would do away with the requirement that physical harm be imminently threatened and would create a change in the law eliminating all requirements of the competing harms defense except the subjective belief of the defendant. If Caswell’s testimony was only that she believed she was being followed, and if there was no evidence that she had been followed and raped shortly before her conduct that led to her detention by the police, then the assertion in the opinion would be correct. However, here we have significant evidence that makes the existence of the imminent threat more than subjective; the evidence is sufficient to demonstrate the reasonable and factual existence of an imminent threat.
[¶ 32] I also write separately to address the issue of the admissibility of Dr. Rines’s testimony. His testimony was admissible because it was relevant to the issue of whether Caswell had a reasonable alternative to driving. By case law we have crafted an additional requirement to the competing harms defense, which is that there must be evidence that the defendant’s conduct is necessary because there is “no reasonable alternative other than violating the law.” State v. Moore, 577 A.2d 348, 350 (Me.1990). This element of the defense is a judicial interpretation of the requirement of showing the necessity of the conduct, that is, the conduct of the defendant can be seen as necessary to avoid the imminent physical harm when there is no reasonable alternative.7
[¶ 33] Because the trial court found that there was insufficient evidence to allow the competing harms defense to go to the jury, *383the court ruled that Rines’s testimony was not relevant. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R. Evid. 401. Rines’s testimony made the lack of a reasonable alternative more probable than it would have been without the evidence. Dr. Rines’s testimony was that because Caswell was suffering from rape trauma, she was not acting as logically as someone who had not been raped might have acted. The fact that Caswell did not want to talk to the officers about what had just transpired was consistent with the actions of other rape victims. Because the lack of a reasonable alternative is an element of the defense, its existence is a fact of consequence. Dr. Rines’s testimony was, therefore, relevant and should have been admitted.8
[¶ 34] A jury, upon hearing all of the evidence and upon being given a competing harms instruction, may have decided that the State had disproven the existence of the competing harm. It could have chosen not to believe that Caswell was raped or that she was afraid her rapist was following her. Perhaps the jury would have concluded that Caswell had a reasonable alternative. Caswell’s jury, however, was not given the opportunity to determine the viability of the competing harms defense. In my opinion, the evidence, viewed in the light most favorable to Cas-well, was sufficient to put the competing harms defense in issue, and the jury should have been given the opportunity to decide it.
. I also disagree that we can speculate that once Caswell got to the gasoline station she could call a taxi to get her. We must take the evidence in the light most favorable to the defendant, and there is no evidence from which such inference can be made.
. The common law defense of necessity required that there be no reasonable legal alternative to violating the law. See United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). Although we have noted that the common law defense of necessity did not survive the adoption of the Criminal Code, see State v. Poole, 568 A.2d 830, 832, we have incorporated this common law requirement into the competing harms defense. See Moore, 577 A.2d at 350.
. I do not suggest that Dr. Rines’s testimony was relevant for any issue other than Cas-well's lack of a reasonable alternative to driving.