Essay: Contract law and duress

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  • Subject area(s): Law essays
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  • Published: 1 August 2017*
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Introduction: Many contracts occur each day, ranging from minor shop transactions to more substantial commercial contracts, they are a normal element of daily life. When entering a contract, there is a basic principle voluntariness of both parties, however issues can arise when one party is pressured to enter into the contract. Denying one party from their right to voluntarily enter the contract gives rise to the defence of duress, which makes the contract voidable . One definition of duress was set out in R v Attorney general [2003] as “physical threat or other illegitimate pressure being used for an improper objective which is sufficiently serious to impair the consent of the other party.” This essay will address the issues associated with duress and discuss whether there is rational justification for the doctrine of duress and if without reason disrupts the principle of freedom of contract. Reasons for: (a) Lawful pressure One question about duress is whether a threat of a lawful act would still be considered illegitimate pressure. This is problematic because essentially the contract is voidable even though all actions were lawful. This was seen in the case CTN Cash and Carry v Gallaher [1994] where the plaintiff ordered cigarettes from the defendant but through their own fault mistakenly ordered them to be sent to the wrong warehouse. The cigarettes were stolen. The defendant mistakenly believed the risk of theft was the plaintiff’s responsibility and as a result insisted the plaintiff pay for the cigarettes and if they were to refuse they threatened to withdraw credit facilities on future contracts. The claim failed in the court of appeal and was found there to be no economic duress because the threat was made in good faith and genuinely believed their claim for payment was legitimate. Steyn LJ went on to say the defendants were in law entitled to refuse to enter into any future contracts with the plaintiffs for any reason and therefore it was lawful for the defendants, for any reason to insist that they would no longer grant credit to the plaintiffs or have the right to reject any party for any reason . Professor Birks explains, “lawful pressures can give rise to the doctrine of duress, the only viable basis for discriminating between acceptable and unacceptable pressures is not positive law but social morality.” This is significant because it shows lawful act cases complicate the doctrine because it is based on social morality rather than law, which means it may interfere with the freedom of contract and normal commercial businesses as parties are constantly having to be wary of their actions even if they are lawful due to fear of the contract being challenged or one party not liking the terms of the contract at a later date and raising a claim of duress. This would interrupt commercial contracts since businesses threatening others to get a better deal is considered a norm, if lawful acts are included in duress it gives the opportunity for the majority commercial contracts to be voidable and therefore widens this area of law to allow for too many claims to be made which in turn may create uncertainty within the law and limit the freedom to create contracts. (b) Voluntary One possible line of thought is for a claim in duress to occur; a contract must have been made. A issue with duress is majority of claims are not from parties that have been physically forced to sign the contract where the other party physically forces their hand to sign it; usually the claims are made by parties that voluntarily entered into the contract. As the party entered voluntarily, it can be argued that duress violate the principle of freedom of contract if the party is able to go back on their agreement at a later date after they voluntarily entered the contract . “A contract is a promise” both parties have made this promise so going back on it is violating the contract (promise) made. More importantly, another point of interest is in the situation where one party is threatened to enter a contract, which they would have entered into anyway. Lord Cross suggested that duress is available even if the contract would have been made without the threats. This can be seen as violating the basic principle of freedom of contract because it is effectively allowing parties to claim in duress and make the contract voidable for no reason, as they would have entered into the contract regardless to the threat made. Issues have been found with this approach, therefore Lord Scarman’s approach in Pao on v Lau Yiu Long [1980] is more adequate approach, which is part of the test of whether duress was operative is whether the claimant had any real alternative but to submit. This is more readily accepted because it implies the contract would not have been made but for the threat which keeps the doctrine of duress narrow and doesn’t allow claims to be made against contracts they would have entered anyway and avoids unjustifiable duress claims to keep the principle of freedom of contract intact. In addition, in the case Barton v Armstrong [1976] the Privy Council seems to share a similar opinion with Lord Cross. It was held that it was sufficient to form duress if the threat was ‘a’ reason for the claimant entering into the contract and not the sole reason. They stated “their lordship think that the same rule should apply in cases of duress and that if Armstrong’s threats were ‘a’ reason for Barton’s executing the deed he is entitled to relief even though he might well have entered into the contract if Armstrong had uttered no threats to influence him to do so…” Here they are reiterating that the defendant’s threat only needs to be one reason among other reasons for the claimant’s entering the contract for a claim in duress to be raised. This evaluation indicates the doctrine of duress focuses on the defendant’s morally wrong behaviour rather than its effect on the claimant. This suggests a lack of rational foundations in the doctrine because as this case was not considered binding precedent, not all judges will share the same opinion as lord cross and the privy council, this means if another case similar to this case comes to court, the decision and reasoning could be different which creates uncertainty in the law.     (c) Illegitimate pressure Additionally, in order for a claim in duress to be successful there must be an illegitimate pressure. Illegitimate pressure is an unlawful threat exerted by the defendant on the claimant. The issue of whether a lawful act can be considered illegitimate was discussed earlier. Prior to economic duress, duress of the person was the only duress available for parties to make a claim. When economic duress became available many issues arose. One issue is which threats are considered illegitimate in economic duress. In the case of Pao On v Lau Yiu Long [1980] , the claimants threatened they would not complete the main contract unless the defendant agreed to a guarantee to buy the shares back from the claimant at the price of $2.50 per share at the end of April 1974. After April 1974, the claimants sought for the defendant to buy the shares back, however the defendant refused and claimed they were under duress when entering the contract. Lord Scarman, giving judgement on behalf of him and others, stated duress is coercion off the will so as to vitiate consent. He focused more on the coercion of the will than the illegitimate pressure, which makes one wonder whether illegitimacy of pressure is less relevant than the coercion of the will in a claim for duress. The lordships agreed that in a contractual situation commercial pressure is not enough, raising the question, what is enough pressure in economic duress for it to be considered illegitimate. This shows the doctrine of duress has a lack of rational foundation because although illegitimate pressure is one of the main features in a claim of duress, it is implied it is less important than the coercion of the will in this case which shows there is no strong basic principles in the doctrine of duress which would help judges decide, instead it is left to the opinion of the judges. Reasons against: (a) Fairness It can be argued the purpose of the doctrine of duress is to provide some fairness for contracting parties. In the case of Atlas Express Ltd v Kafco (importers and Distributors) ltd [1989] , Atlas threatened Kafco that if they do not sign the document, they would not deliver the goods. Kafco signed the contract because the goods were crucial to Kafco’s commercial success and would have been unable to find an alternative provider for the goods at short notice. However later when Atlas sought to collect the money agreed on under the new contract, Kafco refused arguing the new agreement has been made under economic duress. This claim was held to be successful. Tucker J stated Kafco signed the agreement under compulsion and unwillingly, and had no bargaining power. Therefore as Kafco had no bargaining power and was forced into the new agreement it would be fair to make the contract voidable. Similarly in the case Progress Bulk Carriers Ltd v Tube City IMS LLC [2012] where two companies made an agreement that one of the party’s would provide a cargo ship to the other. However the ship was given to another company and in order for the contract to not be terminated the owners offered another ship and to cover the cost of any losses incurred. But later the ship owners said they would only provide the substitute ship if the charters agreed to waive all their rights to damages for the breach in contract. The charters protested but then agreed. It was found the waiver agreement was voidable for economic duress. In this case the charters were clearly in an unfair situation, a claim in duress would have righted the wrong the owners created and in doing so made the outcome of the contract fairer for all parties. Looking back at the examples it is clear the doctrine of duress does provide a rational foundation, and that it creates a principle of fairness. It can be argued it also provides justification for violating the basic principle of freedom of contract, which is to not allow parties in a contract to intimidate the other party to get their way. Further more, forcing another party into the contract violates the basic principle of freedom of contract itself; therefore duress can be thought as simply enforcing the principle and attempting to put the losing party in a position they were prior to the contract if it is decided the contract is void because of duress, the contract has essentially not occurred due to there not being consent. This was seen in the case of Halpern v Halpern [2007] where the parties had been in a dispute over an inheritance, which was settled. The claimant sought damages for breach of this agreement but the defendant argued they entered under duress. Court of appeal adopted a more flexible approach to the issue and referred back to the House of Lord’s decision in Erlanger v new sombrero phosphate co [1873] which held the courts may do ‘what is practically just, though it cannot restore the parties precisely to the state they were in before the contract’ . This indicates there are difficulties in making the law completely fair; there may always be a party, which is in a disadvantaged situation in every duress claim that cannot be fixed by the courts. (b) Limited use It is clear from many previous cases in contract law that judges are reluctant to decide in favour of duress claims. An example of this stems from the case of R v Attorney General [2003] . The judges in order to define the limits of duress; decided the decision in the case was only of persuasive authority for future cases. This is done to encourage English courts to adopt the same approach, reluctance to define the doctrine of duress, in the future cases. It is proposed; the reason for the judge’s reluctance to decide in favour of duress claim is in order to preserve the principle of freedom of contract. Judges recognise duress does violate the principle of freedom of contract, however, they would argue it is not without justification when they do decide in favour of the duress claim. In an attempt to control the claims made for duress, the judges added a time lapse for when a party, which entered into the contract under duress, can claim. If the claim were not made in time, they would not decide in favour of the duress. An example of this is seen in the case North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd, The Atlantic Baron [1979] where a claim in duress was made against the waiver signed by the claimant which signed away their rights to make a claim in court for losses., they claimed they signed it under economic duress. However, although it was found that it was economic duress and it did make the contract voidable, it was not made void because the claimant failed to take faster steps to avoid the contract and in doing so had affirmed the arrangement. It is suggested this is an unfair decision, however it can be seen as justified because judges are attempting to protect the contract and by limiting the time period, it limits the chance of claimants only claiming because they later did not like the terms of the contract after they had already agreed to them. Conclusion: To conclude, referring back to the issues relating to the doctrine of duress previously discussed in this essay, it is evident there are many criticisms and limitations of the doctrine. However, there is a justification for having the doctrine and that is providing a degree of fairness for all contracting parties. The essay also acknowledges that judges recognise the doctrine does violate the basic principle of freedom of contract, however judges avoid deciding in favour unless it is right to do so. Therefore even though there are many issues associated with having the doctrine of duress, the benefits of having it outweigh the criticisms, without it, it would be worse for all contracting parties.

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The Oxford Handbook of Philosophy of Criminal Law

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The Oxford Handbook of Philosophy of Criminal Law

Joshua Dressler holds the Frank R. Strong Chair in Law at Ohio State University, Michael E. Moritz College of Law. He is the Editor-in-Chief of the second edition of the Encyclopedia of Crime and Justice and the author of two treatises and two casebooks in the fields of criminal law and procedure and numerous articles on criminal responsibility.

  • Published: 02 September 2011
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Society has conflicting feelings about persons who commit crimes under duress. People are likely to view them as both victims and villains, and feel compassion for the coerced actor. However, this chapter points out that there is something odd about the defense: the coerced actor is asking to be acquitted although he suffers from no mental disorder, knew precisely what he was doing, and chose to avoid harm to herself or others close to her by causing considerable harm to an innocent stranger. Why would the law exculpate a person for such a self-interested act? The chapter surveys existing duress law, considering this question as well as other issues relating to the outer edges of duress law. It considers involuntary act and mens rea; justification and excuse; homicide; and necessity versus duress.

Society has conflicting feelings about persons who commit crimes under duress. 1 People are likely to view them as both victims and villains. They feel compassion for the coerced actor (imagine a mother who is told that her beloved child will be killed unless she does as she is ordered) and yet also, perhaps, some contempt for her decision to accede to the threat by harming an innocent person (imagine that she is ordered to maim another parent's little child). And, even though it may be true, as Hyman Gross has observed, that the exculpatory claim “I couldn’t help it,” “appeals … urgently to our moral intuitions,” 2 there is something odd about the defense: The coerced actor is asking to be acquitted although she suffers from no mental disorder, knew precisely what she was doing, and chose to avoid harm to herself or others close to her by causing considerable harm to an innocent stranger.

Why would the law exculpate a person for such a self-interested act? This chapter, after a brief survey of existing duress law, considers this question, as well as other issues relating to the outer edges of duress law.

1. Law of Duress

1.1 traditional law.

The defense of duress has been described as being of “venerable antiquity,” 3 but this is misleading. Early scholars, and some more modern ones, have opposed recognition of the duress defense or have favored such limited application of it (e.g., only for minor offenses) as to render it nearly useless as an exculpatory claim. Nonetheless, courts and now legislatures do recognize the defense, although it is rarely invoked. More than a century ago, James Fitzjames Stephen wrote that “hardly any branch of the law … is more meager or less satisfactory” 4 than the doctrine of duress. This statement is only slightly less true today. Although the defense is often defined with imprecision, its general parameters can be summarized.

The traditional duress defense is exceptionally narrow. Subject to clarification below, the defense in the United States and in England may be described as follows: A person who is not at fault for placing himself in the coercive situation will be exculpated if he commits an offense as a result of a coercer's unlawful threat to imminently kill or grievously injure him or a family member. In the paradigmatic case, the coercer threatens to kill or grievously injure the defendant or the relevant third person unless the victim commits a particular crime. This defense is unavailable in murder prosecutions. 5

Innocence of Defendant.

A person may not successfully plead duress if he is responsible for his coercive predicament. The fault factor may be evaluated in various ways. The law may simply state that the defendant must not have been “at fault,” or it may specify that the defense is unavailable if the actor's fault is of a specified level (e.g., negligence or recklessness), or the law may be more specific, as is a New Zealand statute that provides that the defense is unavailable to “a party to any association or conspiracy whereby he is subject to compulsion.” 6

Requirement of a Threat, as Distinguished from an Offer.

Threats coerce, but offers, it is said, do not. A person threatens another if, with the intention of changing another person's behavior, she proposes to render the other person (or a third party) worse off relative to some baseline. (“Unless you rob the bank, I will gouge your eyes out.”) Ordinarily the baseline will be the conditions that existed immediately preceding the proposal along with the normal course of events that could be expected to follow but for the intervention of the proposal. In contrast, an offer will make the other person better off relative to the identical baseline. (“If you rob the bank, I will give you half of the proceeds.”) 7 A person, of course, may issue both a threat and offer. (“Unless you rob the bank, I will gouge your eyes out; but if you do as I say, I will give you half of the proceeds.”) As a matter of criminal law doctrine, the principle that offers do not coerce is unexceptionable, although the urge to act in response to an offer may be stronger than the urge to avoid threatened harm. What matters is that threats limit a person's freedom while offers expand it. There is more to be said on this point, but in the typical coercive situation the assumption is that one who commits a crime as a result of an extreme threat typically acts “out of character” due to fear; people who commit crimes as a result of a temptation (offer) are thought to be acting “in character” as the result of greed or some other vice.

Nature of the Threat.

Not all threats coerce. First, only unlawful threats have legally exculpatory effect. Threats to impose lawful injury do not threaten legitimate interests of the “coerced” person. Occasionally scholars will suggest that a lawful threat can exculpate, 8 but they misuse the term “lawful” to make such a point. For example, assume A, an insane person, threatens to kill B unless B commits a robbery. A's mental condition does not render her threat any less unlawful. For purposes of the criminal law, a threat is unlawful if it is wrongful, even if the person issuing the wrongful threat can avoid legal responsibility for it, as here by pleading legal insanity.

The “unlawful threat” component of the defense leads by implication to a second, controversial feature of traditional duress law: The threat must flow from a human agency rather than a force of nature. Danger arising from a tornado, flood, or starvation, for example, may cause a person to commit a crime, but the threat of harm from such a condition—if “threat” is even the proper word—is not an “unlawful” one, as the latter term presupposes a human actor capable of wrongful thoughts and conduct.

Third, the threatened harm must be imminent. The “imminency” requirement—sometimes phrased in terms of whether the threat can be immediately carried out, or is “present, imminent and impending” 9 —is often treated as a surrogate for a related concern: that the threatened harm is genuine or, at least, is one that would cause a person to have a well-grounded (reasonable) fear that it will be carried out. The imminency requirement also serves two other purposes: it enhances the likelihood that the fear caused by the threat is operating on the mind of the actor at the time of the criminal conduct, thereby satisfying the requirement of a causal connection between the threat and the criminal act; it also serves as a proxy for the sometimes separately stated requirement that, to exculpate, there must be no reasonable opportunity to escape from the threatened harm except by compliance.

Fourth, the traditional rule is that unlawful threats to cause nonphysical harm, for example, economic or reputational injury, and unlawful threats of physical harm to property do not qualify. The only threat of physical harm that legally coerces is what is characterized as a “deadly threat” to another person. Sometimes the defense is limited to “do-as-I-say-or-I-will-kill-you” threats, but it is more often expanded to include unlawful threats to cause grievous bodily (life-threatening) harm, which falls within the broad definition of “deadly force” used by many courts and statutes. 10

The “No Murder” Limitation.

It is frequently stated that the duress defense is unavailable in murder prosecutions, although some court opinions that have so asserted also found other reasons to deny the defense (e.g., insufficient evidence of an imminent threat). As late as the 1980s in the United States it was claimed that “no case has been found in which the defendant was held entitled to a duress charge in a murder case.” 11 In 1975, the English House of Lords held that a coerced accomplice to a murder could claim the defense, but the same tribunal overruled itself twelve years later. 12

The no-defense-to-murder rule is subject to exceptions or, at least, technicalities. In a U.S. jurisdiction in which murder is divided into degrees, a coerced murder may constitute second-degree, rather than first-degree, murder on the ground that the killing, although intentional and perhaps even premeditated, lacked the calm deliberation that is frequently required for first-degree murder. And some courts have suggested that because duress can exculpate a person for felonies other than murder, the effect is that the duress plea can exculpate a person prosecuted for felony-murder. 13

1.2 Modern Reform

Perhaps the most significant reform proposal regarding duress comes from the influential drafters of the Model Penal Code. 14 The Model Penal Code provides:

It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness would be unable to resist. 15

The defense is unavailable if the actor “recklessly placed himself in a situation in which it was probable that he would be subjected to duress.” As with traditional duress doctrine, the defense does not apply to nonhuman coercive conditions.

The Model Penal Code duress defense differs from traditional law in significant regards. First, it is not limited to criminal conduct motivated by threats, but also applies to situations in which the defendant acts because of prior use of unlawful force by the coercer. Second, in regard to threats, there is no imminency requirement.

Third, the defense applies to threats (or force) directed at any person, and not simply the defendant or a family member.

Fourth, the defense applies broadly to any physical force or threat of force—not simply deadly force—that “a person of reasonable firmness in his situation would have been unable to resist.” If accepted literally, however, the defense only applies if the “person of reasonable firmness” would be rendered completely devoid of self-control (“ unable to resist”) by the unlawful actor's force or threat of force.

Fifth, the defense may be asserted in murder prosecutions. According to research in 2008, twelve American states by statute, and one state by case law, follow the Model Penal Code approach in this regard. Two other states by case law recognize a partial defense (permitting duress to reduce the offense from murder to manslaughter). Nonetheless, seventeen states by statute, and fourteen states by case law, continue to apply the no-defense rule. 16

Finally, although it is not evident from the language of the defense, the drafters have indicated that the defense is broad enough to permit its use in the nonparadigmatic case in which “force or threats are employed to get the actor to perform one act; to avoid performing that act, [the defendant] performs a different, and criminal, act.” 17 Thus, the defense potentially applies if a coercer demands that the defendant commit crime X, but the coerced person commits crime Y instead to avoid committing X.

2 Exculpatory Theories: Involuntary Act and Mens Rea

There is considerable uncertainty as to the reason why coercion exculpates, when it does. Two explanations seek to show that a person who acts under duress lacks one of the essential elements of the crime for which he has been charged.

2.1 Actus Reus

One exculpatory explanation could be characterized as an actus reus claim. It may be argued that a person who acts under duress has not performed a voluntary act, which is a general requirement of the criminal law. This argument fails. First, one who is coerced to act does just that—acts—unlike a person whose body is moved by an external force, as when a person is shoved by X into Y, or when his arm is grabbed by X and used to commit an offense on Y. In the latter circumstances, the victim of the external force contributes nothing personally to the harm; a coerced individual, however, does act.

It is also incorrect to state that duress exculpates because the actor's conduct is physically involuntary in the sense that, although there is no external force involved, there is some internal malfunction, such as an epileptic seizure, that renders the defendant's conduct unchosen. The coerced actor's conduct is voluntary in the fundamental sense that he chooses —in the language of earlier centuries, “wills”—his physical actions. He chooses to commit the offense rather than accept the consequences of the coercer's threat. The coerced person's actions in committing an offense are controlled by his mind and not simply by his brain: that is, the coerced actor makes a conscious decision to accede to the threat, whereas a truly involuntary actor is the victim of nonconscious impulses from the brain directed to other parts of the body.

2.2 Mens Rea

Another prima facie exculpatory claim is that a coerced actor is not guilty of the offense he commits because he does not possess the culpable state of mind—mens rea—that is required in the definition of the offense charged. This argument is usually, but not always, false.

A coerced actor acts with a generally culpable state of mind. As stated in Director of Public Prosecutions for Northern Ireland v. Lynch , 18 “the decision of the threatened man whose constancy is overborne so that he yields to the threat, is a calculated decision to do what he knows to be wrong, and is therefore that of a man with … a ‘guilty mind.’”

Today, however, the criminal law often uses the concept of mens rea in a more specific way to require proof that the defendant committed the harm prohibited by the offense with a specific mental state. Even in this situation, however, one who acts under duress usually possesses the requisite mens rea for conviction. The coerced person who kills or rapes a victim, smuggles contraband into a foreign country, or receives stolen property, ordinarily does so with the requisite mens rea: she intends to kill to avoid harm to herself; he intentionally has nonconsensual intercourse; she purposely hides contraband as she crosses a border in order to avoid detection; or he knowingly receives stolen property.

Some offenses as defined, however, require proof that the actor possessed a specific motive when he committed the actus reus of the offense, and this state of mind might be absent in coercive circumstances. For example, consider a mother whose child is kidnapped and informed by the malefactor, “I will kill your boy unless you steal the original Picasso from the local museum. I will release him as soon as you hand over the painting.” The mother takes the painting, hands it to the kidnappers, takes her son back into her custody, immediately thereafter reports her actions to the police, and informs them where they can find the painting and kidnapper. If the mother were charged with larceny, defined as the trespassory (nonconsensual) taking and carrying away of the personal property of another with the purpose of permanently depriving the owner of the property, she ought to be acquitted for lack of mens rea: the coercive circumstances and her actions immediately following the return of her child unequivocally demonstrate that her conscious objective in taking the Picasso was not to permanently deprive the museum of its property but rather to save her son. 19 In this relatively rare situation, the defendant does not need to plead a justification or excuse defense but can avoid conviction by introducing evidence of duress to negate the government's required proof of an element of the offense.

3. Justification and Excuse

3.1 preliminaries.

Once one puts aside the exceedingly limited mens rea argument for exculpation of a coerced actor, the central descriptive and normative questions of this chapter are implicated: Why does, and should, the criminal law acquit an actor who, fully aware of his conduct, intentionally commits a wrongful act as a result of duress? Put differently: Is duress properly characterized as a justification defense, excuse defense, or some combination of the two? Second, in light of the answer(s) to the preceding question(s), are the narrow contours of traditional duress law appropriate and philosophically coherent, or should the defense be broadened?

To determine whether duress is a “justification” or “excuse” defense, one must settle on the meaning of these terms. Semantics matter. As has been nicely pointed out, an atheist can accept the truth of the sentence “God exists” if she understands “God” to mean “my wristwatch.” 20 Unfortunately, the twentieth-century trend of courts was to pay little regard to the distinction between the concepts of justification and excuse and, consequently, to use the terms interchangeably, despite substantial philosophical attention to the subject in the last quarter of the twentieth century and since. 21

3.2 “Justification”

According to one definition, conduct is “justifiable” if, but only if, it is proper, good, desirable, or morally right conduct. A justification defense, in this sense, is recognized when society ultimately approves of the actor's conduct (or, in utilitarian terms, seeks to encourage such conduct), even though the prima facie elements of the offense have been proven. Thus, the intentional taking of the life of another human being ordinarily is a crime (murder); however, if a law enforcement officer intentionally kills a bank robber who is threatening the life of a customer, this homicide is justifiable in the sense stated here: The officer's actions, motivated by public interest, are morally right; we characterize his conduct as right, proper, or societally desirable.

This conception of justification is too narrow. Consider a killing in self-defense of a deadly aggressor. Such self-defensive actions, unlike the officer's, are motivated by self-preservation rather than the public good. Moreover, what if the defendant could have avoided killing the aggressor by retreating from his home, even though the law may not require this? Or what if the aggressor who must be killed is a child dangerously firing a loaded gun? Many people might feel more comfortable describing the actor's genuine self-defensive conduct in one of these scenarios as “permissible, tolerable, not wrongful” conduct, rather than “right, proper, or desirable.”

Although no consensus exists, the broader definition of “justification” is more commonly accepted. 22 That is, justified conduct is conduct that under ordinary circumstances is criminal, but that under the special circumstances encompassed by the defense is affirmatively desirable or, at the least, not wrongful. A working definition, therefore—the one that will be used in this chapter—is that justified conduct is conduct that, at best, is morally right and socially desirable, but that, at a minimum, is tolerable, nonwrongful behavior.

What converts a crime, for example murder, into tolerable, nonwrongful, or even morally or socially desirable conduct? In Blackstone's time, the concept of justification largely took on a public-interest cast, that is, the actor needed to be motivated by more than self-interest to claim justifiable homicide. Today, other moral theories of justification abound, among the most significant being (1) moral forfeiture, (2) moral rights, and (3) lesser harm.

According to the moral forfeiture theory, a person may forfeit her moral and legal interest in her bodily integrity or property by wrongfully threatening the interests of an innocent person. Consider self-defense. A person of sound mind and capacity who wrongfully threatens the life of another can be said to forfeit her right to life; thus, her death does not constitute legally recognized harm. In these circumstances, it is more accurate to say that the justified actor's conduct was not wrongful—no societal harm has occurred—than to assert that the defender's conduct necessarily was morally desirable or right.

A second account of justification is the moral rights principle. Rather than focus on the lost (forfeited) right of the wrongdoer, this principle focuses on the rights of the innocent person. Here, for example, self-defense can be justified on the ground that A has a right to protect her bodily integrity and autonomy from a wrongful attack by B. So understood, self-defensive actions are affirmatively proper.

The third and most common way to justify conduct is to show that the actor's conduct resulted in a lesser harm or evil than if she had not so acted. To turn again to self-defense, when A is threatened by imminent wrongful aggression by B, A's choices are stark—kill or be killed—so B's death is a lesser harm or evil than the alternative. One can reach that conclusion on the ground that the aggressor, but not the innocent person, forfeited her right to life; that the person attacked was asserting her moral right of autonomy but the aggressor was not; or that we want to deter aggression and that this is promoted by encouraging self-defense.

In considering whether the defense of duress is based on justification principles, the focus in this chapter will be on the latter—the choice-of-evils account of justification.

3.3 “Excuse”

According to J. L. Austin, in justification defenses the defendant accepts responsibility for his actions but denies that he has done anything wrong, whereas with excuses he admits that his conduct was wrong but does not accept responsibility, in full or in part, for it. 23 Alternatively, as George Fletcher explains the distinction, “a justification negates an assertion of wrongful conduct. An excuse negates a charge that the particular defendant is personally to blame for the wrongful conduct.” 24 The intriguing challenge with excuses is to provide a persuasive account of why society and the law are willing to consider an actor blameless, and not criminally responsible, even though he has committed a wrongful act.

It is now well recognized that Jeremy Bentham's explanation for excuses—that they are recognized in circumstances in which the actor is nondeterrable—will not do. First, a legal system without excuses would prevent deterrable offenders from harboring the belief that they could commit a crime and falsely convince the jury of their nondeterrability. Moreover, a strict liability system would be less expensive and would render the overall deterrent threat more credible. Modern utilitarians, most notably H. L. A. Hart, have developed more sophisticated arguments for recognizing excuses. Hart has argued that a legal system that maximizes personal choices within the context of coercive law—a system that accordingly excuses people who cannot freely choose—will result in maximizing personal freedom by ensuring citizens that they can avoid the pain of punishment by choosing obedience to the law. 25 Sanford Kadish puts it best, however, when he argues that what any non-desert-based argument for excuses, including Hart's, “is missing is an account of the concern for the innocent person who is the object of a criminal prosecution …. To blame a person is to express a moral criticism, and if the person's action does not deserve criticism, blaming him is a kind of falsehood and is, to the extent the person is injured by being blamed, unjust to him.” 26 In short, excuse defenses are required as a matter of simple justice to the blameless wrongdoer. Three nonconsequentialist excuse theories, therefore, predominate: (1) causation, (2) character, and (3) choice.

First, the causation account of excuses asserts that a person is not responsible for criminal conduct caused by some condition for which the actor is also not to blame. 27 If I am not to blame for condition C (e.g., mental illness), and C causes me to commit W, a wrongful act (e.g., rape), then I am not to blame for W. This explanation fails to accurately describe current Anglo-American excuse law. For example, even if Albert's hatred, fear, or repugnance of gay persons is the result of a pathology, he will not be excused for killing a gay person in the absence of some cognitive or volitional incapacity, even though it may be that, but for the mental illness, he would not have committed the crime. And, on a fundamental level, for those who believe that all effects have causes (determinism), whether those causes are “biological, psychological, sociological, astrological, or some combination of the above,” 28 moral responsibility is an illusion, 29 and the causation theory is useless; and it is a false theory if one rejects determinism and asserts that effects exist without causes. Few people seriously defend the causal theory. As Stephen Morse has observed, “[m]ost often, those arguing for the causal theory are simply advocates for excusing one type of defendant or another.” 30

A second explanation for the recognition of excuses is character-based. Although accounts in this area differ in certain respects, the essence is that a person does not deserve to be punished unless her conduct is a manifestation of her bad character, of the fact that she is “antilinked” 31 to the moral values of the community. According to this account, a person should not be held responsible for her wrongful conduct if it is “out of character,” that is, the crime was not “determined by (or in some other way expressive of) those enduring attributes of ourselves we call our characters.” 32

Advocates of this account must first explain what is meant by “character.” Does “enduring attributes of ourselves” mean anything more than the synthesis of all of our prior actions? Beyond this, how is character (however defined) to be evaluated in a courtroom? As Jeffrie Murphy has observed, “there are staggering obstacles in the way of making [character] judgments about others.” Do jurors (or any of us) possess “the knowledge required to impute deep character depravity to others with any degree of reliability”? 33 Indeed, in a liberal polity do we even want jurors engaged in such character attribution? Descriptively as well, character theories diverge from existing punishment practices. The law frequently holds a person responsible for conduct that may be loosely characterized as “out of character,” 34 and people with bad character who commit crimes are not, as a consequence of their character, denied the application of excuse law.

Most fundamentally, the character theory requires its adherents to explain why we are responsible for our (bad) character. Certainly few today would doubt the claim that genetics and early childhood conditions—factors over which we have no control—deeply shape a person's character and, therefore, behavior (notice the faulty causation theory cropping up again). Given this reality, one must ask why, and if so when, a person may be held responsible for her character so as to be blamed for it and the resulting conduct. The answer to the “why,” but not to the “when,” may be that “[i]n life, as in cards, being dealt a bad hand requires us to develop and exploit our skills and virtues rather than capitulate to circumstances or resort [to one's bad character].” 35 This statement, however, assumes that people possess the capacity to fundamentally change their character. Even if we have this capacity in general, surely there are those who lack it (perhaps again for genetic reasons). Assuming the requisite capacity, when can we attribute a person's responsibility to her? Is it when she should be aware of her antisocial character but perhaps isn’t? as soon as she is aware? or only when she is aware and subsequently can be described as having chosen affirmatively to identify with it (or, at least, to “capitulate” to her bad character)? These questions, which lack good answers, demonstrate that the character explanation of excuses will not do.

By far the dominant modern explanation of excuses, and the one that comes closest to explaining Anglo-American law, is the choice theory. This account is thinner than the first two: it looks at the actor at the time of the crime and does not seek to resolve the perplexing and perhaps humanly unresolvable questions of an actor's fundamental character. According to this theory's advocates, a person is responsible for her conduct and, therefore, deserves to be blamed for wrongful conduct if, at the time of the crime, she possessed the capacity and fair opportunity “to function in a uniquely human way, i.e., freely to choose whether to violate the moral/legal norms of society.” 36 Such free choice is absent when a person lacks the substantial capacity or fair opportunity to (1) understand the factual circumstances relating to her conduct; (2) appreciate that her conduct violates societal norms; or (3) conform her conduct to the dictates of the law. 37 This account of blaming practices takes into consideration claims of internal disabilities of the actor (“substantial incapacity” claims), which call into question the person's ability to function as a moral agent, as well as external conditions or events that constrain the actor's choices (“no-fair-opportunity” claims), which do not call into question the person's moral agency but still render her, in these unique circumstances, not a fair candidate for blame. 38 The choice account of responsibility, like the other excuse theories, is subject to potential criticism by determinists: if a person is “caused” to behave in a certain way, can we truly say that the person possessed the “capacity” or “fair opportunity” to do otherwise? 39

In considering whether the defense of duress is based on excuse principles, the primary focus in this chapter will be on the choice account of excuses.

3.4 Why the Distinction Matters

The question of whether duress is a justification defense or an excuse (or, perhaps, can be shown to be either, depending on particular circumstances) is a matter of more than philosophical interest (although surely it is that, which itself is sufficient reason for interest). First, the criminal law is intended to express society's evaluations of right and wrong conduct. There is a distinct difference between a community stating that particular conduct is proper (or, at least, tolerable) and stating that it is wrongful conduct but that, for specific reasons, the actor should not be held criminally accountable for it. The law should accurately express its moral sentiment.

Second, any effort to develop theoretical consistency in the criminal law—for example, to be sure the law relating to such full or partial defenses as duress, necessity, and provocation make sense in relationship with each other—requires consideration of the justification/excuse distinction.

Third, the characterization of duress as a justification or, instead, as an excuse, might have practical significance in individual cases. According to some scholars, a justification defense is universizable: if act X is justifiable, anyone may justifiably assist the actor to do X; and it is unjustifiable to resist X (i.e., there cannot be incompatible justifications). Thus, if a coerced actor is justified, for example, in raping a woman, it would follow according to this view that the coerced actor may call on others, including persons in no way implicated by the coercion , to assist in the rape and such persons would also be exculpated; 40 and this would also mean that a police officer or the husband of the victim would not be justified in preventing the rape. These seemingly unacceptable conclusions need not follow if the rape is merely excused. There is considerable dispute in regard to this understanding of the concept of justification, 41 a dispute that necessarily goes beyond the scope of this chapter, so some or all of these practical implications are disputable, but the earlier reasons for caring about the distinction, as well as other concerns, 42 remain valid.

4. Duress as a Justification

The most straightforward argument for the view that duress is a justification defense is a lesser-harm one: that the harm or evil of breaking the law because of coercion is less than the harm or evil that was unlawfully threatened against the defendant. One who, with no realistic option, steals a car because his child is held at gunpoint is justified in doing so on a lesser-harm basis. As R. A. Duff has put it, “[w]e might indeed sometimes commend such an agent for doing ‘the right thing’ in that situation, and for being clear-headed enough to see what she should do.” 43 Understood this way, duress is nothing more than a variant of the justification defense of necessity. The latter defense typically applies when a person reacts to a natural , that is, nonhuman, imminent threat of an extremely serious nature by committing a crime less serious than the harm threatened. Duress, in contrast, deals with unlawful human threats. Thus, according to this view, duress and necessity should fall under the broad umbrella of a single choice-of-evils justification plea.

On its face, this understanding of duress seems to work if the defense is limited to the narrow common-law version of the defense. If the only exculpatory threat the law recognizes is an imminent deadly one, and the defense is unavailable in murder prosecutions, then a coerced actor seemingly is always committing the lesser of two evils when he accedes to the deadly threat.

This analysis, however, is descriptively inadequate. First, it cannot fully explain the duress defense in any jurisdiction that recognizes the defense in murder prosecutions and/or if the defense is broadly defined to permit exculpation when a person accedes to a nondeadly threat, for example, any threat that would cause “a person of reasonable firmness” to commit the offense. Unless one concludes that the defense should not be available in such circumstances, a more sophisticated and broader explanation of the defense is required.

Second, it is not true that the defense always applies when the coercer threatens to cause greater harm than the harm demanded by him. If my family and I will be killed unless I kill my neighbor, the traditional duress defense does not apply, even though a utilitarian lesser-harm calculus could support the homicide. This suggests that the no-homicide rule is based on Kantian, nonconsequentialist principles and so calls into question the conclusion that the duress defense itself is simply a lesser-harm, utilitarian-based justification defense. Consider, as well, the rule that a person is never justified in acceding to a non imminent threat of death or grievous injury (or, for that matter, a lesser threat). To an act-utilitarian, and even a rule-utilitarian, the defense should apply to nonimminent threats of greater harm, if the threat is sufficiently likely to occur, and reasonably reliable cost-benefit calculations are possible. 44

Third, the duress defense does apply in cases in which the coerced actor may cause equal or greater social harm than that threatened. If vengeful Albert threatens to gouge my son's eye out unless I rape Albert's ex-girlfriend, Carla, the duress defense applies if I accede to the threat. Yet it is hardly clear that Carla's rape is a lesser harm than that threatened by Albert. Indeed, most juries, required to balance the harms, would probably reach the opposite conclusion.

In short, the lesser-social-harm explanation explains some, but not all, cases in which duress exculpates and fails to explain some coercive circumstances that are denied. It is also an uninteresting explanation in that a sensibly constructed justification defense (one that incorporates both unlawful human threats as well as natural forces) would incorporate lesser-harm duress claims, yet this still leaves other cases of coercion that require explanation. This lesser-social-harm account of duress “lacks the right intuitive feel. If one should be acquitted [in coercive circumstances] it does not seem to be because, or at least not primarily because, acquiescence promotes greater social utility.” 45

Now consider this hypothetical. A coercer threatens to cut off my child's left arm unless I do the same to another innocent child. The duress defense applies here, yet if I accede to the threat, I have not committed a lesser harm and thus have not acted justifiably. 46 Or have I? Perhaps the lesser-harm justification conception of duress can be saved by applying a different conception of “lesser harm.” Rather than (or in addition to) focusing on what actions result in greater societal utility, some philosophers 47 advocate “agent-relative” (as distinguished from agent-neutral) teleology or defend “agent-centered prerogatives,” that is, the harm to the person threatened is considered from his perspective and not from the neutral perspective of the law or society as a whole.

According to this perspective, the standard approach to lesser-harms analysis, which calculates the costs and benefits of conduct exclusively from the standpoint of the law's general aims, is too narrow. Instead, a person is entitled to prefer her own and her family's welfare over that of strangers. According to Gary Watson, 48 it is not unreasonable for an individual in a coercive predicament to refuse to subordinate her own or her family's interests to that of the public; the defense of duress, so understood, recognizes “a space in which compliance with the law is optional.” Coerced actors have a prerogative—an agent-centered one—to value their own well-being (and that of loved ones) above that of strangers. Watson argues that the criminal law's legitimacy in a liberal democracy (which does not use the criminal justice system to compel virtue from its citizens) is in jeopardy unless the law acknowledges “the limits of its own moral jurisdiction.” Otherwise, good citizens will not respect the law.

Watson concedes that this agent-relative principle is not “explicitly and unequivocally endorsed” by the law. Indeed, the principle of an agent-centered prerogative is flatly inconsistent with the view held by some scholars that justification defenses are universizable, 49 and limited to conduct characterized as “right, desirable, or proper.” On the other hand, for those who reject the universizability thesis, and those who contend that a justification defense can involve merely tolerable or permissible conduct, agent-relative valuation cannot be so quickly rejected.

This conception of cost-benefit calculation is plausible. There is little doubt that most people do value themselves over others, their families over strangers, and members of their religious, racial, ethnic, or national community over “outsiders.” In addition, the agent-relative approach is consistent with the traditional rule that the duress defense is limited to threats to the coerced person or family. According to this approach, when a coerced actor accedes to a threat, what might appear to the law as a greater-harm choice (and thus unjustified) will actually result in a lesser-harm outcome because the coerced actor is entitled to place a higher value on his own interests than society would. But how much? May I cause severe harm to another innocent person to protect myself from minor injury? Does the answer to that question change if, instead, I am trying to protect my spouse or my child? What if I, a lonely person, feel as deeply attached to my dog as you are to your spouse or sibling? Assuming the defense applies to homicides and I am justified in killing an innocent person to save my own life, what about killing two people, or three? How far should agent-relativity go?

Practicalities aside, there are principled objections to agent-centered prerogatives. The moral principle that innocent human life should be valued equally is a deeply held one. Yes, people typically do act in their own self-interest, but most people probably endorse Hyman Gross's observation that “we have a right to require [of a person] more than a bare showing that self-interest prompted what he did.” 50 The claim that it is not unreasonable for an individual to refuse to subordinate her own or her family's interests to the goals of the community would be more accurate if it were stated that it is understandable when an individual behaves in this manner. Perhaps some people understand why I might rape an innocent woman in order to avoid having my eye gouged out by a coercer, or even why I might kill an innocent person to avoid being maimed, but to understand this is not necessarily to excuse, and far less to justify the conduct.

All of this may be true and even acknowledged by advocates of agent-centered prerogatives, but trumped in their view on political theory grounds. But here, too, Watson overstates his claim that the legitimacy of the system is jeopardized if it compels compliance with the law. He is right that a democratic system should demonstrate respect for its citizens, but respect is shown by treating people justly, not necessarily by tolerating self-interested behavior. In a liberal society, a genuinely coerced actor who commits greater societal harm in order to protect himself or his family quite plausibly should not be punished for his conduct. But that only demonstrates (or at least claims) that duress should excuse, not that a person has a prerogative to ignore societal goals and deeply held (and important) moral beliefs about the equal value of human life.

In conclusion, some cases of duress involve a coerced actor committing the lesser of two societal evils or harms. In any jurisdiction that defines the defense of necessity (or choice-of-evils) broadly, encompassing conduct motivated by human as well as nonhuman sources, these cases of duress can be resolved in this manner, leaving the remainder of exculpatory duress cases in need of further explanation. Alternatively, some coerced actors, while causing greater societal harm by acceding to a threat, cause lesser harm if one accepts the principle of agent-relative contextualization, a conception of a “personal justification” that strangers may not assert. Even here, however, not all cases can be justified in this manner; even among its advocates the agent-centered prerogative to act in a self-interested manner is not unlimited. In addition, this rationale has nothing to say about the potential exculpation of actors who respond in a disinterested manner to threats to strangers. In short, the duress-as-justification claim is neither a sufficient explanation of the criminal law duress doctrine as it has developed, nor broad enough to satisfactorily resolve many normative issues relating to coercion.

5. Duress as an Excuse

Although coerced conduct may sometimes be justifiable, duress is better—and sometimes can only be—understood as an excuse. As noted earlier, utilitarian theories have little place in excuse analysis (and can be critiqued anyway), but the duress defense (or, at least, a version of it) may be explained in admittedly discredited Benthamite excuse terms. Punishment is unjustifiable if it will produce no benefit in the form of crime reduction, and it is at least empirically plausible that the legal threat of punishment will not deter criminal conduct that is the result of certain threats, particularly imminent deadly ones. Nor, it might be added, is there likely to be reason to consider most coerced actors dangerous or in need of rehabilitation. Following Hart's approach to excuses, as well, our quality of life is improved if we know that the law will excuse us if we accede to extreme threats. A rule-utilitarian, therefore, should be prepared to recognize the defense in those circumstances in which the cost-benefit calculation favors an excuse, presumably when the threat is especially great (an imminent deadly threat being the most salient). As already pointed out, however, the core of any excuse claim is going to be nonconsequentialist in nature, so these arguments are largely makeweight.

Once one turns away from utilitarianism, one may try simply to explain the recognition of the defense of duress in terms of the emotion of compassion that we, as observers, ordinarily feel about the coerced wrongdoer: “We feel a close connection to [him]. He is perceived as a normal person in an abnormal situation. His weakness is our weakness. We find it impossible to separate him from ourselves; there, but for the grace of God or good fortune, go the rest of us.” 51 All of these observations are important to understanding duress, but the emotions that we feel about the coerced actor are not and should not be the key to understanding the defense. Descriptively, people sometimes feel compassion for wrongdoers whom the law does not excuse, such as a criminal born into and shaped by a dysfunctional home life or social environment that makes it exceptionally difficult to be law-abiding. And just as the emotion of compassion can result in false positives, it can lead to false negatives: a legally insane wrongdoer sometimes evokes fear rather than compassion, yet the law properly excuses such a person. Ultimately, what we feel about others is not the key to whether and when we should excuse. Wrongdoers should be excused when it is unjust to blame and punish them. It is their right to be excused and is not dependent on our feelings of compassion.

Why is it just to excuse a coerced actor in certain circumstances? Consider, first, the coerced actor who seeks to explain his actions this way: “I am a good person. I would not have committed this crime if I had not been threatened.” This understandable explanation triggers two separate but related false excuse accounts, one based on causation (“But for the threat I would never have committed this crime; since I am not to blame for the former, I am also blameless for the latter”), and one on character (“I am a good person, so I should not be punished”).

The causation claim cannot explain the existing defense. Although this account of the defense is consistent with the requirement that the actor be free of fault for finding himself in the coercive situation, it does not explain the requirement that the coercive threat be a deadly one, or even that it be one that would cause a person of reasonable firmness to commit the crime. The causation theory, if taken seriously, would require the exculpation of any person, including one born weak-willed, who could convince the fact finder that he would not have committed the crime in question but for the threat, even if it was merely a minor physical threat or merely a threat to property, reputation, or the like. Indeed, the causation theory would justify exculpation of an actor who could show that, but for an exceedingly attractive unlawful offer , he would not have committed the crime. This demonstrates why causation is an unacceptable explanation for any excuse claim. Causation is not the same as compulsion. 52

The character explanation suggests that the duress defense should be recognized when a threat “would motivate a person with the proper character to perform an (otherwise) evil act.” 53 According to this account, the will of the coercer—and, thus, his bad character—is directed through the “passive mediating structure” 54 of the coerced party. This explanation fatally suffers from all of the difficulties of the character theory generally. It also is descriptively imperfect: Even if jurors were provided (which they are not) with the facts necessary to determine the character of a defendant, the law does not, in itself, deny a “bad” person the duress defense. What can be said in descriptive defense of the character explanation is that when the elements of the defense are satisfied there is a distinct possibility that a person of good character, whether or not the defendant is such a person , would accede to the threat and commit the crime. The assumption is that even good people commit bad acts when threatened (or when a loved one is threatened) by death, grievous injury, or perhaps certain other threats. The defendant gets the benefit of the excuse without consideration of his own character. Understood this way, the character explanation of duress is really a proxy for a different excuse account: Any person, regardless of character, should not be held accountable for actions that are the result of pressures that no person may fairly be expected to overcome. The choice theory, therefore, best fits the duress defense.

As examined earlier, the choice explanation of excuses focuses on whether the person, at the time of the offense, had the capacity and fair opportunity to understand the facts relating to his conduct, to appreciate that his actions violate society's mores, and to conform his conduct to those mores. It is theoretically possible, but implausible, that a coerced person would find himself so fearful that he does not know what he is doing, or that he knows what he is doing but lacks the capacity to know it is wrong. The fundamental basis for excusing the coerced actor instead involves the third element of free choice: Although he knew what he was doing and realized it was wrong, he lacked the capacity or fair opportunity to conform his conduct to the law.

Some assert that coerced wrongdoers should be excused because the effect of a deadly threat is to overwhelm the actor's capacity to control his conduct; essentially he cannot conform to the law's dictates because his will has been overborne. 55 This explanation is descriptively false. The defense does not excuse those, and only those, who can demonstrate volitional incapacity. A person genuinely threatened with death who calmly deliberates his choices and who chooses to accede to the threat is not denied the defense on that ground; and a weak-willed person or one who is peculiarly susceptible to a certain type of minor threat is denied the excuse even if he could somehow prove that his fear had a disabling effect on him.

Even if there were a way to identify the point at which a particular person's “will” is overborne, this would not be an acceptable standard for excusing a person because it would permit the weak-willed person to avoid criminal responsibility. At some point in one's life a person becomes (or should become) aware of his strengths and weaknesses. One who is (or should be) aware that he too easily accedes to others’ unlawful entreaties or demands has the responsibility to attempt to strengthen his resolve; one who fails to make that effort should be held accountable even if his will was (in this unrealistic hypothesis) truly overborne. The exception to this would be if he could prove the existence of some verifiable disability that prevented him from acting otherwise, but this would (or should) establish an independent ground for irresponsibility (e.g., insanity) or reduced responsibility (e.g., diminished capacity), not duress.

This is not to say that fear does not make self-control more difficult, for it does (a matter considered in subsection 6.2). The most that can be said in support of a total -incapacity explanation of duress, however, is that it is based on “the incapacity of men in general to resist the coercive pressures to which the individual succumbed,” 56 but this is simply another way of saying that we believe that all people have a breaking point and that the law should not punish those who experience threats that would cause “men in general” to break. This explanation suggests that the basis for the duress claim has less to do with an empirical judgment about a person's capacity (or incapacity) to obey the law—the statement “I couldn’t help it” is metaphorical—and more to do with the opportunity to conform to the law.

The best explanation of duress is that coercion excuses when a person lacks a fair opportunity to act lawfully. The basis for the excuse is not that there is something wrong with the internal “machinery” of the actor (as with insanity), but with external circumstances (the threat) acting on a normal person. One who claims duress says, in essence, “I am only human. You can’t fairly expect more of me than what I did.” When the choices confronting a person, through no fault of her own, are so great—when a person finds herself in such a “dark place[]” 57 —that it is too much to expect (predictively) and demand (normatively) that she make the “right” (most socially desirable) choice, the law properly excuses that individual. Thus, the defense is not founded on the ground that the coerced person lacks the inherent attributes of a moral agent, but rather on the ground that she is not a fair candidate for the stigmatization and punishment that flow from a conviction.

Understood this way, duress is a normative, or moralized, theory of excuse. The question, quite simply, is “what we can fairly expect of each other in a civilized society”? 58 The basis is not that the actor encountered an unfair choice, for one who is subjected to an unlawful threat, even a trivial one, by definition is placed in an unfair position, yet that is insufficient basis for an excuse. Nor is it enough that the choice the actor encountered was a hard one. We are all confronted by hard choices in life. Nor is the issue simply whether the person standing in judgment of the actor, for example a juror, believes that she would have done the same thing in similar circumstances, although this effort to put oneself in the shoes of the actor is a feature of the excusing process. A person, in honest reflection, might say, “I probably would have done what the defendant did in his situation, but I would expect to be punished for it.” The more apt question to ask in the duress context is whether the juror believes it is unfair to punish the person, given the threatening circumstances, for having chosen the wrong option.

The Model Penal Code language—whether the threat was such that a person of reasonable firmness would be “unable to resist” committing a crime—is faulty to the extent that it implies that the basis for the defense is (at least as to the hypothetical person of reasonable firmness) the notion of incapacity. The person-of-reasonable-firmness standard, however, gets at the essence of the doctrine. This language properly suggests that the criminal law does not require virtue and should not require, at the risk of punishment, saintly moral strength from its citizenry; but neither should it deprive individuals of the respect they deserve by assuming that they cannot act as responsible moral agents in difficult circumstances.

Is the person of “reasonable firmness,” then, a person with no more than an ordinary degree of moral fortitude? The term “reasonable” sometimes has a different purpose or meaning in the context of an excuse, as distinguished from justification, defense. 59 For example, the provocation doctrine generally provides that a person is partially excused for killing another as the result of provocation if a “reasonable person”—in reality, an “ordinary” person of average disposition, as some courts expressly provide 60 —might have been liable to lose self-control in the same circumstances. An application of an ordinary-person standard in the duress context, although empirical in the sense that it would seek to identify what level of moral strength is typical of human beings, would still represent a normative standard because the decision not to punish such a person constitutes a normative judgment. 61

One should be careful, however, about such an interpretation. This understanding of the person of reasonable firmness ought to require the law and the fact finder to ask “whether a person with the kind of commitment to the values protected by the law (and violated by this action), and with the kind and degree of courage we can properly demand of citizens , would have been thus affected by such a threat.” 62 As long as jurors are not hypocritical—as long as they would demand as much of themselves as they demand of others—then the duress defense justly accords an excuse to wrongful-but-coerced actors while still treating them with respect as responsible moral agents.

6. Duress and Homicide

6.1 full defense.

The traditional rule that duress cannot be asserted as a defense to murder is probably based on the faulty premise that the defense is meant to justify a criminal homicide on lesser-harm grounds or, alternatively, on the deontological moral postulate that the killing of an innocent person, even to save a greater number of lives, is always wrong. At the least, the no-defense rule is a function of a lack of serious focus on the justification/excuse distinction, as evidenced by the fact that some courts, in a single opinion, will describe duress claims, and the reasons for rejecting the defense in homicide cases, in both “justification” and excuse” terms. 63

Blackstone wrote that a coerced person “ought rather to die himself than escape by the murder of an innocent,” 64 a quotation frequently repeated in modern case law. To state what one ought (or not) to do is to speak of what is (or is not) justifiable. It says nothing about what ought-not conduct might be excusable. Thus, too, the English House of Lords in the coerced homicide context has espoused the “principle” that the “overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility.” 65 As a justificatory principle, this is a plausible assertion; as a statement about excuses, it is confused. Taken as an assertion about excuses, it would suggest that the law should not recognize any excuse defense. Similarly, a U.S. court explicitly defended retention of the common-law duress rule (at least in one-life-for-one-life situations) on the explicit ground that the duress defense is a choice-of-lesser-evils defense and, therefore, that the plea must be denied because “[w]hen the defendant commits murder under duress, the resulting harm—i.e. the death of an innocent person—is at least as great as the threatened harm—i.e. the death of the defendant.” 66 That this justificatory analysis may even extend to duress claims when a defendant seeks to protect more than one life by killing one innocent—thus, a situation in which a utilitarian calculation of evils could justify the taking of an innocent life, but a nonconsequentialist moral argument against killing innocent people would still prevail—is seen in Lord Hailsham's citation in Regina v. Howe , a duress case, of the famous “necessity” ruling of Dudley and Stephens , 67 a decision frequently cited for the authority that one may not justifiably kill an innocent person even to save a greater number of lives threatened by starvation.

Once one understands duress as an excuse claim, the no-defense rule loses almost all of its intellectual authority. Although it could be argued that one who chooses her own life (or, perhaps, that of a family member) over that of a stranger demonstrates the character flaw of self-centeredness and, therefore, should be denied an excuse, this argument has no place in a choice-oriented explanation of duress. Self-preservation, although not an instinctual reaction, as is evidenced by acts of heroism in wars and emergencies, is nonetheless a very strong urge that argues against a categorical no-defense rule. The statement by Lord Coleridge that he and the other members of the House of Lords “are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy,” 68 has validity in a justification-based, Kantian-like environment but should be attacked as hypocritical and unjust in an excuse context. No person has a fair opportunity to comply with a law with which the highest judicial authorities admit that they, themselves, could not comply.

This is not to say that the nature of a coercer's demand—whether to assault an innocent person, steal a Picasso painting, rob a bank, rape a child, kill an innocent person, or kill ten innocent people—is irrelevant to the question whether a person should be excused for his actions. If the duress defense were properly understood exclusively in personal incapacity-oriented terms, then the nature of the coercer's threat would be irrelevant: Once one concludes that fear of death or grievous injury destroys one's capacity for choice, it follows that a person should be excused any crime he commits as a result of the capacity-destroying threat. However, the duress defense is a moralized excuse. The issue is whether the coerced actor had a fair opportunity to avoid committing a crime, 69 so it follows that the options confronting the coerced party are relevant. The duress defense does include a balancing-of-harms aspect, but it is one that does not reach the conclusion that acceding to the threat is a lesser harm than the alternative. The nature of the threat is relevant, however, in determining whether it is unfair to expect the person to choose the lesser of two evils or to choose self-sacrifice among equal harms—in short, the question is whether the coerced actor is a fair candidate for blame and punishment. Given the chance, it is possible to imagine fair-minded persons sitting on a jury concluding that a defendant lacked a fair opportunity to comply with the law if he was forced to choose between the rape or death of his child at the coercer's hands and the death of an innocent stranger at his own hands; the moral calculus might very well be different if the same person must choose to give up his own life or that of his child (or, at least, try to resist the coercer even if chances of success are tiny) rather than kill a classroom filled with children.

However one resolves the moral issues, a categorical no-excuse rule is indefensible, which is the position taken by U.S. jurisdictions that apply the Model Penal Code version of duress, and is the view expressed by England's Law Commission in 2006, which recommended that duress be made a full defense to murder committed in response to a threat of death or life-threatening harm. 70

6.2 Partial Defense: Duress versus Provocation

The no-defense homicide rule is anomalous in light of other criminal law doctrines. For example, the duress defense generally applies if a coerced person tries to kill another, fails, and is charged instead with an offense such as assault with intent to kill or to commit grievous bodily injury. Even more perplexing, however, is the law's recognition of the provocation partial defense to murder with the simultaneous denial of even a partial defense to coerced murder.

Two explanations may be offered for this distinction, but neither withstands scrutiny. The first explanation relates to self-control. The provocation defense is recognized because some provocative acts are so egregious that the provoked party is likely to find self-control much more difficult; 71 one who kills as a result of serious provocation is less culpable than one whose control mechanisms are undiminished by external circumstances. In contrast, the duress defense is not an incapacity-oriented defense. That is why the defense remains available to a person, threatened with great harm, who consciously and in full control of his faculties commits a crime. Granting this distinction, however, there is no reason to assume that fear, induced by a deadly threat, cannot affect control mechanisms in much the same way and to the same degree as anger, induced by provocative actions or words, does. Although the full defense of duress is not based on the ground that coerced actors fully lose self-control (and the defense should not be justified on the related ground that some threats will cause the hypothetical person of reasonable firmness to be unable to resist committing a crime), there is no reason based on considerations of self-control simultaneously to recognize a partial defense to killing caused by righteously provoked anger while denying a partial defense to a person whose fear for himself or a loved one has undermined his self-control to the same degree.

A second purported justification for the distinction between the law's treatment of provocation and that of coercion relates to the homicide victim: The provoked killer ordinarily kills the provoker, whereas the coerced actor kills an innocent third person. This distinction makes sense under some theories of justification: If one accepts the forfeiture doctrine of justification, for example, it can be claimed that there is greater social harm in the death of an innocent person than in that of one who wrongfully triggered the incident by acting provocatively. But this distinction loses most or all of its authority once one understands that the two defenses are excuses rather than justifications. Moreover, there is a competing argument in favor of a duress defense, at least of a partial nature, when one understands that whereas a provoked defendant acts in an excessive, punitive, retaliatory manner, a coerced defendant is responding, albeit often unjustifiably, in order to prevent future harm to himself or others.

In short, even if a full defense is not recognized, a person who is coerced to kill an innocent person is entitled to a partial defense as long as the law recognizes a partial defense in provocation cases.

7. Necessity versus Duress

7.1 necessity.

The “necessity” defense is often treated as a justification defense that applies when a person responds to a naturally caused (more accurately put, nonhuman) dangerous condition or threat—for example, a tornado raging toward the individual, an aggressive rabid dog, or death by starvation on a lifeboat—by committing a crime less serious than the danger confronting the individual. 72 In contrast, the duress defense is traditionally limited to persons who act in response to a human do-X-or-I-will-do-Y threat, where X is a crime and Y is serious physical harm to the person threatened or someone related to him. If duress were simply and always a justification defense—if X were always a lesser harm than Y—there would exist no more than an arbitrary distinction between necessity (natural) threats and duress (human) threats that could sensibly be avoided by merging the two defenses into one.

Consider the situation once duress is understood to be an excuse defense. Some critical gaps in the law then occur, the most notable of which is that one who is threatened by a natural force (thus taking the case outside the realm of the human-threat duress defense) has no exculpatory defense if she commits a greater harm than was threatened (thus taking it outside the realm of the justificatory necessity defense). In addition, if the necessity defense is limited to nonhuman threats, a person who commits a lesser harm as a result of a human do-this-or-else threat would not have a justification-necessity defense. Finally, consider a humanly caused danger, but one that does not involve a “do-this-or-else” threat. For example, suppose I see two thugs running toward a parked car in which I am a passenger waiting for the driver to return from an errand. I have good reason to fear that the thugs will cause serious harm to me. Therefore, I drive the car away although I have no driver's license. 73 The crime I have committed is certainly less than the harm I reasonably feared, but will the justificatory defense of necessity be available to me in this case of a humanly caused danger? Or what if the harm I fear from the thugs is less than the harm I cause (for example, I fear a robbery, so I drive my vehicle into their bodies, permanently disabling them or even killing them). Is the duress excuse defense available to me in this situation, since the thugs did not order me to commit the crime of seriously harming them?

Some of these concerns are resolved in jurisdictions (for example, those that have followed the direction of the Model Penal Code) that recognize a justification-necessity defense that applies to human and nonhuman threats alike. But there has been much greater hesitancy to similarly expand duress to nonhuman threats. The same Model Penal Code drafters who expanded necessity to include human threats persist in limiting the duress excuse defense to “unlawful” threats, which by this language excludes nonhuman threats or dangerous conditions.

Why is there resistance to broadening the conception of duress to include nonhuman threats? Advocates of the traditional approach suggest that the concept of coercion involves an interpersonal relationship, 74 and that victimization implies a victim wronged by another. 75 According to this view of duress, the reason why the source of the threat is critical is that when the threat emanates from a human source, the idea of the crime belongs to the threatener—it is another person's will in operation—whereas when the danger comes from a natural source, the idea of the crime arises entirely from the mind and will of the defendant. In the former case, the law can excuse the coerced actor and still hold someone responsible for the crime; in the latter, if the law excuses the defendant there is no one responsible for the resulting harm. The latter distinction should not matter, however. The law already recognizes that social harm cannot always be redressed through punishment, as when an insane person commits a crime. If there is reason to believe that the defendant, confronted by a nonhuman threat, lacked a fair opportunity to comply with the law, that should be sufficient basis to excuse her wrongdoing. It is unjust to hold a person criminally accountable for harm she has caused simply because there is no other person to whom to attach criminal responsibility. It is submitted, therefore, that the excuse of duress should apply to nonhuman forces to the same extent as human threats.

7.2 Duress of Circumstances

The traditional limitation of duress to human threats notwithstanding, there is limited case law, especially in the United Kingdom, recognizing what is sometimes characterized as “duress of circumstances,” a defense that applies when a person commits a crime as a result of a threat (in England, limited to one of death or life-threatening harm) that does not fit the paradigmatic “commit-this-crime-or-else” form. 76 This version of duress can encompass a natural threat (and thus is in consonance with the position taken in subsection 7.1), and it may also involve an unlawful human threat that does not fall within the usual parameters of a duress claim. For example, suppose that an inmate in a penal institution, threatened with sexual attack or some other serious injury, flees the prison and is later returned to custody and charged with prison escape. American courts have struggled to determine whether the prisoner should be allowed to claim any defense and, if so, whether it is better understood as a (justification) necessity or (excuse) duress claim. 77 Some courts have determined that it cannot be duress because the inmate who threatened the safety of the defendant did not order him to escape, which then leaves only a justificatory claim of necessity (and, then, only if the defense is broad enough to include human actors), which might not apply depending on the balancing of harms. “Duress of circumstances” offers another option. This result is consistent with the no-fair-opportunity conception of duress.

Without so denominating it (and perhaps without realizing it), American jurisdictions that have enacted the Model Penal Code version of duress have also accepted the human-threat version of “duress of circumstances.” The language of the Code's duress provision permits a person to assert the excuse if, as a result of prior violence or present unlawful threats of violence, he commits any crime, even one not ordered by the threatening party , that a person of reasonable firmness would have been unable to resist committing. This model of the defense would allow the escaping prisoner to assert duress. Intriguingly, it would also seem to allow a person to seek an excuse for harm committed against the coercer that is not otherwise covered by a justification defense. For example, a woman who has been beaten and degraded regularly by her partner and who kills him while he is asleep might not be able to claim self-defense (for lack of imminency or immediate necessity) or even lesser-harm necessity but would seemingly have the right to have a jury consider a claim of duress on the ground that the abuser's prior violence would cause a person of reasonable firmness to act as she did. 78 Thus, this version of duress allows the law to find a way to provide justice to the battered woman without justifying vengeance or preemptive strikes; it also allows her to be excused without having to claim insanity, opening herself to the implication that she is not a moral agent, not to mention that she would be subject to civil commitment as a result of her supposed mental illness. As with any duress claim, the battered woman claiming duress would be seeking exculpation on the ground that she responded as any other normal person might in similar unfair circumstances.

7.3 “Rotten Social Background”

Consider a person born into a broken home, or with parents deeply involved in a life of crime, who lives in deep poverty, where the only people “succeeding” are drug pushers, gang members, and other criminals. Should a person shaped by these experiences—by what one judge has called a “rotten social background” 79 (RSB)—who turns to crime be excused for his criminal activities? Various scholars, most notably, Richard Delgado, think so. 80

Of course, a person living in these conditions might have a traditional duress defense in some circumstances if, for example, he seeks to avoid involvement in criminal activities rampant in the community but is forced by a gang member to participate in a crime. But advocates of an RSB defense are making a far more expansive argument: that people who live in these circumstances and who turn to crime as a result should be excused, even in the absence of any specific imminent (or nonimminent) human threat. Must one who accepts the validity of “duress by circumstances” also recognize a duress excuse for RSB defendants? 81

One can offer a predictable, straightforward causation explanation for excusing RSB defendants: they are not to blame for the conditions in which they were born and brought up; those conditions caused them to develop an antisocial belief structure; that belief system caused them to commit crime. If one were to accept the causation theory of excuses, the RSB defendant would have a valid claim, but that is only because the causation theory, taken seriously, nullifies everyone's criminal responsibility. As noted earlier, causation is not the same as compulsion.

There is an initially plausible duress claim. The claim would be that a person brought up and living in horrible social conditions lacks a fair opportunity to conform his conduct to the law. A person who grows up in a seriously deprived environment will, through no fault of his own, almost inevitably identify with the surrounding antisocial culture. The pressures to conform to that criminal culture, especially in the absence of counter-influences in the home environment, are sufficiently great that it may fairly be argued that the RSB actor was not “given the opportunities that promote responsible attitudes.” 82

Notice, however, how such a claim turns the duress defense on its head. Duress by circumstances typically involves an actor who commits a crime against his will, coerced by some extreme event, such as those confronting Dudley and Stephens in a lifeboat, starving to death, who killed another to eat the remains. 83 The RSB defendant, however, is committing crimes consistent with his will. What the RSB defendant really is arguing is that he is not to blame for his criminally inclined character because of the conditions in which he was brought up—he did not have a fair opportunity to incorporate lawful values.

Even if one accepts this assertion as factually accurate, it does not follow that the law must recognize an RSB duress claim. It can readily be conceded that it is very difficult (although not impossible) for a person who grows up in a terrible environment to develop socially acceptable values, but that is not the point of a duress-based excuse. The issue is not whether a person had a fair opportunity to live a better life or develop a better character but whether the person (given those background realities) had a fair opportunity not to commit the particular crime on the particular occasion. 84 That is, the question that must be asked is whether, given the RSB defendant's antisocial values, he had a fair opportunity not to rob the particular liquor store, rape the particular woman, or kill the particular person who stood in the way of his antisocial goals.

The duress defense cannot go so far as to allow exculpation on this basis. The duress defense represents a very limited exception to the general rule that a person who possesses normal adult practical reasoning skills is morally and legally accountable for his intentional conduct. To claim that a person of “reasonable moral firmness” would be unable to resist robbing, raping, or murdering on a particular occasion, where there is no specific threat being imposed, runs counter to the law's and society's requirement of personal responsibility. As has been written, “the difference between the person who acts with a gun at his head, sharks in the sea, or starvation on the immediate horizon, on the one hand, and the RSB actor, on the other, is too basic to ignore.” 85

1. Joshua Dressler , “Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits,” 62 S . Cal. L. Rev. 1331, 1331 (1989).

2. Hyman Gross , A Theory of Criminal Justice 276 (1979).

3. Regina v. Howe [1987] 1 AC 417, 428 .

4. James Fitzjames Stephen , A History of the Criminal Law of England 105 (1883).

5. For sources that summarize the traditional elements of duress, see Glanville Williams , Criminal Law: The General Part, §§ 242–247 (2d ed. 1961) (English law) ; Dressler, supra note 1, at 1135–1343 (U.S. law); Claire O. Finkelstein , “Duress: A Philosophical Account of the Defense in Law,” 37 Ariz. L. Rev. 251, 253–257 (1995) (U.S. law).

N.Z. Crimes Act 1961, § 24(1).

7. Alan Wertheimer , Coercion 204–206 (1987).

8. E.g., Stanley M. H. Yeo , Compulsion in the Criminal Law 98 (1990).

9. E.g., State v. Scott, 827 P.2d 733, 740 (Kan. 1992) .

10. E.g., State v. Clay, 256 S.E.2d 176 182 (N.C. 1979) (defining “deadly force” in the context of self-defense as “force likely to cause death or great bodily injury”).

Model Penal Code and Commentaries, § 2.09 at 371 n 24 (Revised Comments 1985).

12. Regina v. Howe [1987] 1 AC 417 , overruling   Lynch v. Director of Public Prosecutions for Northern Ireland [1975] AC 653 .

13. People v. Anderson, 50 P.3d 368, 379 (Cal. 2002) (dictum); contra   State v. Moretti, 120 Pac. 102. 104 (Wash. 1912) (denying defense in accidental killing during a robbery).

The Model Penal Code is the product of the American Law Institute, a prestigious organization composed of criminal law scholars, jurists, and practitioners in the United States. The Model Penal Code as a whole, adopted by the Institute in 1962, has significantly influenced American law.

Model Penal Code § 2.09(1).

The law in unclear in the remaining American states. I thank Susan Landrum (Ohio State University–Moritz Law School '09), for her research on this subject.

Model Penal Code and Commentaries, supra note 11, at 377.

[1975] A.C. 653, 703 (Lord Kilbrandon).

19. See also Regina v. Steane [1947] K.B. 997 (C.A.) (Defendant, who broadcast pro-German messages on the radio, was charged with doing an act likely to assist the enemy “with the intent to assist the enemy”; held: he was entitled to argue to the jury that, due to coercion, he did not intend to assist the enemy).

21. Joshua Dressler , “Justifications and Excuses: A Brief Review of the Concepts and the Literature,” 33 Wayne L. Rev. 1155, 1158 (1987).

25. H.L.A. Hart , Punishment and Responsibility 17–24 (1968) ; Sanford H. Kadish , “Excusing Crime”, 65 Cal. L. Rev. 257, 263–264 (1987) (criticizing Bentham's explanations and summarizing the Hart position).

Kadish, supra note 25, at 264.

28. Stephen J. Morse , “Thoroughly Modern: Sir James Fitzjames Stephen on Criminal Responsibility,” 5 Ohio St. J. Crim. L. 505, 507 (2008).

There have been efforts by philosophers, lawyers, and others to accommodate the “truth” of determinism with the deeply held view that people can properly be blamed and held morally responsible for their actions. Some “compatibilists” seek to draw distinctions between “hard” and “soft” determinism (the former of which seemingly renders moral responsibility impossibile, but the latter of which allows for moral responsibility). This debate goes beyond the scope of this chapter.

Morse, supra note 28, at 508.

31. Robert Nozick , Philosophical Explanations 382 (1981).

33.   Jeffrie G. Murphy , “Moral Epistemology, the Retributive Emotions, and the ‘Clumsy Moral Philosophy’ of Jesus Christ,” in The Passions of Law 149, 157–158 ( Susan A. Bandes ed. 1999).

E.g., a person of “good character” with too little sleep or worrying about conditions in her life might push someone down in a moment of pique. If serious harm results, a prosecutor might choose to bring criminal battery charges, and the person's good character would not excuse.

35. William Wilson , “The Structure of Criminal Defences,” 2005 Crim L. Rev. 108, 110–111.

36. Joshua Dressler , “Reflections on Excusing Wrongdoers: Moral Theory, New Excuses, and the Model Penal Code,” 19 Rutgers L.J. 671, 701 (1988).

37. See Joshua Dressler , Understanding Criminal Law § 17.03[E] (4th ed. 2006) ; Hart, supra note 25, at 181; Andrew Ashworth , Principles of Criminal Law 254–256 (3rd ed. 1999).

38. Kyron Huigens , “Duress Is Not a Justification,” 2 Ohio State J. Crim. L. 303, 306–311 (2004).

See supra note 29.

40. E.g., United States v. Lopez, 662 F. Supp. 1083 (N.D. Cal. 1987) (trial court stating that the question of whether alleged perpetrator D1's claimed defense is characterized as a justification or, instead, excuse defense, is critical to the determination of whether alleged accomplice D2 can assert D1's defense in his own case).

George Fletcher may be the most consistent advocate of the universizability doctrine. For a summary and critique of Fletcher's views, see the sources cited in note 22.

The proper allocations of burdens of proof, and the moral legitimacy of retroactive application of changes in duress law, arguably depend on consideration of the justification/excuse distinction. Dressler, supra note 37, at 17.05[F]–[G].

Finkelstein, supra note 5, at 257–265.

Wertheimer, supra note 7, at 166.

46. This is the position, for example, of the Model Penal Code, which denies the defense of justification in equal-harm circumstances. Quite arguably, however, the law should justify any action that is not a greater harm. If I am put in a position in which I must choose between two equal harms, the law should be indifferent to my choice. Peter Westen & James Mangiafico , “The Criminal Defense of Duress: A Justification, Not an Excuse—And Why It Matters,” 6 Buffalo Crim. L. Rev. 833, 885 (2003). As long as one understands “justification” as meaning that the conduct in question is not wrong, rather than that it is affirmatively right or desirable, any justification defense should apply in equal-harm circumstances. On the other hand, if one of the two “equal” paths requires me (presumptively) to violate the law and the other does not require a law violation, then the harms are not equal, since there is additional social harm from the act of violating society's laws.

47. E.g., Gary Watson , “Excusing Addiction,” 18 Law & Phil. 589, 608–611 (1999) ; Wertheimer, supra note 7, at 165–169; see generally Schroeder, supra note 20.

See the pages cited in note 47.

See section 3.4, supra.

Gross, supra note 2, at 281.

Dressler, supra note 36, at 683.

Morse, supra note 28, at 516.

Wertheimer, supra note 7, at 294 (describing this as Aristotle's “ambivalent” argument for an involuntariness conception of duress).

54. John Lawrence Hill , “A Utilitarian Theory of Duress,” 84 Iowa L. Rev. 275, 289 (1999).

55. Regina v. Hudson 2 All E.R. 244, 246 (CA 1971); see 2 Paul H. Robinson , Criminal Law Defenses , § 177(b) (1984).

Model Penal Code and Commentaries, supra note 11, at 374 (emphasis added).

57. Rosa Ehrenreich Brooks , “Law in the Heart of Darkness: Atrocity and Duress,” 43 Va. J. Intl. L. 861, 862 (2003).

58. George P. Fletcher , Basic Concepts of Criminal Law 83 (1998).

Yeo, supra note 8, at 17.

60. E.g., Maher v. People, 10 Mich. 212, 220 (1862) (providing that provocation is sufficient to reduce the offense to manslaughter if “reason should … be disturbed or obscured by passion, to an extent that might render ordinary men, of fair average disposition, liable to act rashly”) (emphasis omitted).

Huigens, supra note 38, at 311.

Duff, supra note 43, at 64 (emphasis added).

63. E.g., People v. Anderson, 50 P.3d 368, 369 (Cal. 2002) (citing Blackstone for the view that “duress is no excuse for killing an innocent person” and in the next paragraph stating that “[w]e conclude that, as in Blackstone's England, so today … fear for one's own life does not justify killing an innocent person.”) (emphasis added).

64. 4 Blackstone , Commentaries on the Law of England 30 (1769).

65. Regina v. Howe [1987] 1 AC 417, 430 .

66. People v. Anderson, 50 P.3d 368, 371 (Cal. 2002) .

(1884) QBD 273.

Id. at 288.

This is not to say that a coerced person does not have some basis for making an incapacity-based volitional claim, as explained in section 6.2 infra .

The Law Commission, “Murder, Manslaughter and Infanticide,” § 6.21 (Nov. 26, 2006), at 116.

71. See Joshua Dressler , “Why Keep the Provocation Defense: Some Reflections on a Difficult Subject,” 86 Minn. L. Rev. 959 (2002).

72. But see Perka v. The Queen (1985) 13 D.L.R. (4th) 1 (permitting the defense in context of natural threats, apparently only as an excuse, when instinct “overwhelmingly impel[s] disobedience” with the law).

73. See Regina v. Conway [1988] 3 All ER 1025 (C claimed that he violated traffic laws because he believed that two men, actually nonuniformed police officers, were assassins intending to harm a passenger in his vehicle; held: C entitled to “duress by circumstances” [discussed in section 7.2 infra ] instruction).

74. J. Roland Pennock , “Coercion: An Overview,” in Coercion 3 ( Nomos XIV , J. Pennock & J. Chapman eds. 1972).

75. Herbert Fingarette , “Victimization: A Legalist Analysis of Coercion, Deception, Undue Influence, and Excusable Prison Escape,“42 Wash. & Lee L. Rev . 65, 106 (1985).

Law Commission, supra note 70, § 6.7 at 112.

77. For example, People v. Unger, 362 N.E.2d 319 (Ill. 1977) .

78. A fair reading of the Model Penal Code duress provision would permit a jury instruction on duress: she would argue that, as a result of prior “use of … unlawful force” on the battered woman, a “person of reasonable firmness” would have been unable to resist engaging in her conduct (killing her abuser). This, of course, does not fit the paradigm of duress, which assumes the coerced actor commits a crime against an innocent third person, but the language of the Code is broad enough to allow this claim to be made. For a defense of this claim, see Joshua Dressler , “Battered Women and Sleeping Abusers: Some Reflections,” 3 Ohio St. J. Crim. L. 457 (2006) ; Joshua Dressler , “Battered Women Who Kill Their Sleeping Tormenters: Reflections on Maintaining Respect for Human Life While Killing Moral Monsters,” in Criminal Law Theory: Doctrines of the General Part 259 (S. Shute & A. P. Simesters eds. 2002).

79. United States v. Alexander, 471 F.2d 923, 961 (D.C. Cir. 1973) (Bazelon, J., dissenting) (“rotten social background” coined by the trial judge and then used in the Bazelon opinion).

80. For example, Richard Delgado , “‘Rotten Social Background’: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?,” 3 Law & Inequality 9 (1985).

Delgado, in a scatter-gun approach, provides various nonduress grounds for exculpation, including justification theories, and excuse theories based on insanity, cultural defense, and so on. Those approaches go beyond the scope of this chapter. For a brief summary of his positions in id., and a critique of them, see Dressler, supra note 1, at 1377–1379.

82. Ferdinand Schoeman , “Statistical Norms and Moral Attributions,” in Responsibility, Character, and the Emotions 311 ( F. Schoeman ed. 1987).

Dudley & Stephens, (1884) QBD 273.

A different exculpatory argument might be made: A society so unjust as to permit such dehumanizing character-harming conditions lacks moral authority to blame and punish the criminal actor. (Interestingly, however, some observers have noted that juries composed of persons living in the same “rotten” conditions seem at least as willing as others to blame RSB wrongdoers.) Such a no-standing-to-blame-and-punish argument is not a duress claim, but rather a political-theory explanation that falls outside the scope of this chapter.

Dressler, supra note 1, at 1384.

Selected Bibliography

Listed here are sources of value to those researching the criminal law topic of duress, as considered in this chapter. (Many of the works cited in the notes are not included here.)

Alexander, Larry . 1999 . “A Unified Excuse of Preemptive Self-Protection.” Notre Dame Law Review 74: 1475–1505.

Ashworth, Andrew . 2007 . “ Principles, Pragmatism and the Law Commission's Recommendations on Homicide Law Reform. ” Criminal Law Review 2007: 333–344.

Google Scholar

Berman, Mitchell N.   2002 . “ The Normative Function of Coercion Claims. ” Legal Theory 8: 45–89. 10.1017/S1352325202081028

Brooks, Rosa Ehrenreich . 2003 . “ Law in the Heart of Darkness: Atrocity and Duress. ” Virginia Journal of International Law 43: 861–888.

Brudner, Alan . 1987 . “ A Theory of Necessity. ” Oxford Journal of Legal Studies 7: 339–368. 10.1093/ojls/7.3.339

Carr, Craig L.   1991 . “ Duress and Criminal Responsibility.” Law and Philosophy 10: 161–188. 10.1007/BF00143089

Dressler, Joshua . 1989 . “ Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits. ” Southern California Law Review 62: 1331–1386.

Fingarette, Herbert . 1985 . “ Victimization: A Legalist Analysis of Coercion, Deception, Undue Influence, and Excusable Prison Escape. ” Washington and Lee Law Review 42: 65–118.

Finkelstein, Claire O.   1995 . “ Duress: A Philosophical Account of the Defense in Law. ” Arizona Law Review 37: 251–283.

Hill, John Lawrence . 1999 . “ A Utilitarian Theory of Duress. ” Iowa Law Review 84: 275–338.

Hitchler, Walter Harrison . 1917 . “ Duress as a Defense in Criminal Cases. ” Virginia Law Review 4: 519–545. 10.2307/1064428

Huigens, Kyron . 2004 . “ Duress Is Not a Justification. ” Ohio State Journal of Criminal Law 2: 303–314.

Morgan, Edward M.   1984 . “ The Defense of Necessity: Justification or Excuse?. ” University of Toronto Faculty Law Review 42: 165–183.

Nozick, Robert . “Coercion.” 1969 . In Philosophy, Science and Method: Essays in Honor of Ernest Nagel, ed. Sidney Morgenbesser , Patrick Suppes , and Morton White , 440–472. New York: St. Martin's Press.

Google Preview

Pennock, J. Roland , and John W. Chapman , eds. 1972 . Coercion . Chicago: Aldine Atherton.

Reed, Alan . 1996 . “Duress and Provocation as Excuses to Murder: Salutary Lessons from Recent Anglo-American Jurisprudence.” Journal of Transnational Law and Policy 6: 51–92.

Wertheimer, Alan . 1987 . Coercion . Princeton: Princeton University Press.

Westen, Peter , and James Mangiafico . 2003 . “ The Criminal Defense of Duress: A Justification, Not an Excuse—And Why It Matters. ” Buffalo Criminal Law Review 6: 833–950.

Uniacke, Suzanne . 1989 . “ Killing under Duress. ” Journal of Applied Philosophy 6: 53–69. 10.1111/j.1468-5930.1989.tb00378.x

—— . 2007 . “ Emotional Excuses. ” Law and Philosophy 26: 95–117. 10.1007/s10982-006-0003-y

Yeo, Stanley M. H.   1990 . Compulsion in the Criminal Law . Sydney: Law Book.

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Evaluation of Incentive Policy for Intelligent Construction in Shenyang Based on Policy Modeling Consistency Index Model 2024-01-5024

Intelligent construction has become an important way to accelerate the transformation and upgrading of the construction industry and promote the high-quality development of the construction industry. As a national pilot city of intelligent construction, Shenyang needs effective policy system support for the development of intelligent construction. Quantitative research of policy text can provide a decision-making basis and path optimization suggestions for formulating and improving intelligent construction incentive policies (ICIP) in Shenyang. This study uses text mining and the Policy Modeling Consistency index (PMC index) model to construct an intelligent construction policy index system. Then it combines the PMC index and PMC surface to evaluate and analyze the text of ICIP in Shenyang quantitatively. The results show that there is still room for improvement in the ICIP in Shenyang. Accordingly, countermeasures and suggestions are put forward for policymakers, enterprises, and industry associations.


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  18. Duress

    The chapter surveys existing duress law, considering this question as well as other issues relating to the outer edges of duress law. It considers involuntary act and mens rea; justification and excuse; homicide; and necessity versus duress. Keywords: defense, justification, duress law, coercion, involuntary act, homicide, mens rea.

  19. Defence of Duress

    The defence of duress of circumstances grew out of the inflexibility afforded in the defence of necessity.It is often referred to as necessity by another name. It will often allow a defence where the defence of necessity would deny one. The defence of duress of circumstances came about largely as a mistake in the case of R v Willer in which the defendant raised the defence of necessity.

  20. Economic Duress: An Essay in Perspective

    Human rights from the Great Depression to the Great Recession: the United States, economic liberalism and the shaping of economic and social rights in international law. This thesis takes a 'law in context' and 'history of ideas' approach to examining the emergence, elaboration and evolution of 'economic and social rights' as human ...

  21. Duress essay plan

    inevitable feature of a duress claim, given its apparent irrelevance in cases of duress of the person and duress of goods. Mance J in Huyton SA v Peter Cremer GmbH & Co Point 4 - the absence of consent Point 5 - substantive unfairness Thesis Use Additional Research Required 2.

  22. Duress and Necessity Evaluation Essay Flashcards

    Duress - Defendant claims they have been forced to commit crime by someone else Admitting they had both the Mr and Ar but under special circumstances Successful use = complete defence (R v Hasan 2005) 'excuses what would otherwise be criminal conduct and exonerates defendant' Not a defence to murder Two types: Duress by threats and Duress of circumstances

  23. Defence of Duress

    Reform: Murder, Manslaughter, Infatacide - Law Commission 2006? Duress - full defence to murder. Abolish Howe and Gotts. Study with Quizlet and memorize flashcards containing terms like Duress & Murder - harsh - cases?, Duress & Murder; Law Commission 1977?, Issues of Criminal Association? Cases? and more.

  24. Evaluation of Incentive Policy for Intelligent Construction in Shenyang

    Evaluation of Incentive Policy for Intelligent Construction in Shenyang Based on Policy Modeling Consistency Index Model 2024-01-5024. ... TechSelect is a cost-effective subscription option to select and download 12-100 full-text Technical Papers per year. Find more information here. Standards & Publications. SAE MOBILUS; Standards;