duress n : compulsory force or threat; "confessed under duress"
- Rhymes: -ɛs
Translations to be checked
- For English law on the criminal defence, see duress in English law. For contract law, see Duress (contract law)
Duress or coercion can also be raised in an allegation of rape or sexual assault to negative a defence of consent on the part of the person making the allegation.
DiscussionIn this situation, the defendant has actually done everything to constitute the actus reus of the crime and has the mens rea because he or she intended to do it in order to avoid some threatened or actual harm. Thus, some degree of culpability already attaches to the defendant for what was done. In the criminal law, the defendant's motive for breaking the law is usually irrelevant although, if the reason for acting was a form of justification, this may reduce the sentence. The basis of the defense argues that the threats made by the other person actually overwhelmed the defendant's will and would also have overwhelmed the will of a person of ordinary courage (a hybrid test requiring both subjective evidence of the accused's state of mind, and an objective confirmation that the failure to resist the threats was reasonable), so that his or her entire behavior was involuntary. Thus, the liability should be reduced or discharged, making the defense one of exculpation.
It is extremely unlikely that a state would exclude a class of persons from liability for acting under duress since, by identifying the situations giving rise to duress and excluding them, the state might encourage victims not to show any form of resistance when simple defiance might otherwise have prevented the commission of the offence. For example, suppose that when their families were threatened, prison officers were excluded from liability for unlawfully releasing a convicted person, this might introduce a fundamental weakness into the prison service.
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.
RequirementsIn 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 defence cannot be used for cases of murder (even for participants of a murder [following Howe (1987)]), cases of attempted murder (stated in the obiter dicta of Howe (1987) and confirmed in the case of Gotts (1992)) and some forms of treason. (Cases are in reference to the case law of England and Wales.)
Problematic exampleTo clarify aspects of the duress defense, consider a situation where the defendant was locked in a room with an handgun illegal for him to possess. If police entered the room, the defendant could be arrested for illegal firearms possession, perhaps even a stolen weapon used in a recent murder. With a duress defense, the defendant would be claiming possession of the weapon, but then trying to argue the situation was not willful. However, the defendant, by admitting possession of the firearm, might be tied to the murder, or tried as an accomplice, or as someone trying to conceal evidence. If the crime were the murder of a police officer, then the defendant could be sentenced to death. All of those risks are variations on the ways someone can be framed for crimes they did not commit, where the duress defense can involve problematic results. Although there have been cases in which duress is an acceptable defense for a person who is being charged with murder. But this is only the case when a person has been threatened by another person who is claiming to kill or harm many innocent people if he or she refuses to cooperate.
ReferencesWesten & Mangiafico, The Criminal Defense of Duress: A Justification, Not an Excuse - And Why It Matters, (2003) Vol. 6 Buffalo Criminal Law Review, 833.
duress in Korean: 속박
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