Court approves, conditionally

Right to flee from jail upheld

✪ New York Times Service

SAN FRANCISCO – For the first time in what it said was 238 years, a California court has ruled that under some limited circumstances a prisoner is right to escape from jail:

The California Court of Appeals ruled that in some instances the threat of homosexual, rape is fearsome enough for a prisoner to justifiably seek to escape from jail.

The ruling, couched in terms of civil liberties, is the first since 1736, the court said, to raise the possibility that reprehensible living conditions in prison can in and of themselves become so intolerable that the inmate has the "human" right to leave.

The decision, by presiding Justice Robert Gardner of the Fourth District, in Southern California, is being appealed by the state attorney general's office.

Significantly, however, the appeal is not based on the ground that "necessity to escape," as it is called, is not a legal defense. Instead, the appeal asserts that the justice's opinion may have been too broad.

Gardner himself tried to warn against wide interpretation. "We do not concede that we have created a new defense to the escape charge," he wrote. "We merely recognize as did an English court 238 years ago that some conditions 'excuseth the felony' of escape."

The chief restriction he cited is that the prisoner must have sought virtually every recourse to protect himself. Furthermore, upon escaping, he must turn himself over to the authorities as soon as possible.

The case is based on the escape of Marsha Lovercamp and Linda Wynashe

from a narcotics rehabilitation center in Southern California.

way:

Gardner described the situation this

"They were threatened continuously by a group of lesbian inmates who told them they were to perform lesbian acts or be physically beaten. They complained to the authorities several times and, finally, escaped to save themselves."