- For English law on the criminal defence, see duress in English law. For contract law, see Duress (contract law)
(as a term of jurisprudence
) is a possible legal defense
, one of four of the most important justification defenses, by which defendants
argue that they should not be held liable
because the actions that broke the law
were only performed out of an immediate fear of injury. Black's Law Dictionary
(6th ed.) defines duress as "any unlawful threat
used... to induce another to act [or not act] in a manner [they] otherwise would not [or would]." The notion of duress must be distinguished both from undue influence
in the civil law
and from necessity
which might be described as a form of duress by force of circumstances. Note that in criminal law, a duress defense is similar to a plea of guilty, admitting partial culpability
, so it could possibly lead to an easy conviction.
Duress or coercion can also be raised in an allegation of rape or sexual assault to negate a defence of consent on the part of the person making the allegation.
In this situation, the defendant has actually done everything to constitute the actus reus
of the crime and has the mens rea
because he or she intended to do it in order to avoid some threatened or actual harm. Thus, some degree of culpability
already attaches to the defendant for what was done. In the criminal law, the defendant's motive for breaking the law is usually irrelevant although, if the reason for acting was a form of justification, this may reduce the sentence
. The basis of the defense argues that the threats made by the other person actually overwhelmed the defendant's will and would also have overwhelmed the will of a person of ordinary courage (a hybrid test requiring both subjective evidence of the accused's state of mind, and an objective confirmation that the failure to resist the threats was reasonable), so that his or her entire behavior was involuntary. Thus, the liability should be reduced or discharged, making the defense one of exculpation.
The extent to which this defense should be allowed, if at all, is a simple matter of public policy. A state may say that no threat should force a person to deliberately break the law, particularly if this breach will cause significant loss or damage to a third person. Alternatively, a state may take the view that even though people may have ordinary levels of courage, they may nevertheless be coerced into agreeing to break the law and this human weakness should have some recognition in the law.
A variant of duress involves hostage taking, wherein a person is forced to commit criminal act under the threat that their family member or close associate will be immediately killed should they refuse. This has been raised in some cases of ransom wherein a person commits theft or embezzlement under orders from a kidnapper in order to secure their family member's life and freedom.
In order for duress to qualify as a defense, four requirements must be met:
- Threat must be of serious bodily harm or death
- Harm threatened must be greater than the harm caused by the crime
- Threat must be immediate and inescapable
- The defendant must have become involved in the situation through no fault of his or her own
A person may also raise a duress defense when force or violence is used to compel him to enter into a contract, or to discharge one.
The defense cannot be used for cases of murder (even for participants of a murder [following Howe (1987)]), cases of attempted murder (stated in the obiter dicta of Howe (1987) and confirmed in the case of Gotts (1992)) and some forms of treason. (Cases are in reference to the case law of England and Wales.)
Westen & Mangiafico, The Criminal Defense of Duress: A Justification, Not an Excuse - And Why It Matters
, (2003) Vol. 6 Buffalo Criminal Law Review, 833.