Duress
For English law on the criminal defence, see duress in English law. For contract law, see Duress (contract law)
Duress or coercion (as a term of jurisprudence) is a possible legal defense, one of four of the most important justification defenses[1], by which defendants argue that they should not be held liable because the actions that broke the law were only performed out of an immediate fear of injury. Black's Law Dictionary (6th ed.) defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner [they] otherwise would not [or would]." The notion of duress must be distinguished both from undue influence in the civil law and from necessity which might be described as a form of duress by force of circumstances.[citation needed]
[edit] Discussion
In this situation, the defendant has actually done everything to constitute the actus reus of the crime and has the mens rea because he or she intended to do it in order to avoid some threatened or actual harm. Thus, some degree of culpability already attaches to the defendant for what was done. In the criminal law, the defendant's motive for breaking the law is usually irrelevant although, if the reason for acting was a form of justification, this may reduce the sentence. The basis of the defense argues that the threats made by the other person actually overwhelmed the defendant's will and would also have overwhelmed the will of a person of ordinary courage (a hybrid test requiring both subjective evidence of the accused's state of mind, and an objective confirmation that the failure to resist the threats was reasonable), so that his or her entire behavior was involuntary. Thus, the liability should be reduced or discharged, making the defense one of exculpation.
It is extremely unlikely that a state would exclude a class of persons from liability for acting under duress[citation needed] since, by identifying the situations giving rise to duress and excluding them, the state might encourage victims not to show any form of resistance when simple defiance might otherwise have prevented the commission of the offence. For example, suppose that when their families were threatened, prison officers were excluded from liability for unlawfully releasing a convicted person, this might introduce a fundamental weakness into the prison service.[citation needed]
The extent to which this defense should be allowed, if at all, is a simple matter of public policy. A state may say that no threat should force a person deliberately to break the law, particularly if this breach will cause significant loss or damage to a third person.[citation needed] Alternatively, a state may take the view that even though people may have ordinary levels of courage, they may nevertheless be coerced into agreeing to break the law and this human weakness should have some recognition in the law.
[edit] Requirements
In order for duress to qualify as a defense, four requirements must be met:[1]
Threat must be of serious bodily harm or death
Harm threatened must be greater than the harm caused by the crime
Threat must be immediate and inescapable
The defendenant must have become involved in the situation through no fault of his or her own
A person may also raise a duress defense when force or violence is used to compel him to enter into a contract, or to discharge one.
The defence cannot be used for cases of murder (even for participants of a murder [following Howe (1987)]), cases of attempted murder (stated in the obiter dicta of Howe (1987) and confirmed in the case of Gotts (1992)) and some forms of treason. (Cases are in reference to the case law of England and Wales.)
[edit] References
^ a b Gaines, Larry; Miller, LeRoy (2006). Criminal Justice In Action: The Core. Thomson/Wadsworth. ISBN 0-495-00305-0.
Westen & Mangiafico, The Criminal Defense of Duress: A Justification, Not an Excuse - And Why It Matters, (2003) Vol. 6 Buffalo Criminal Law
