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Excuse: Duress - The Nature Of The Crime

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Some think that duress, if it is sufficiently severe, will excuse any crime. According to the traditional common law position, however, killings, and maybe even treason, can never be excused by duress. In recent times, this issue was most vividly posed in Lynch v. Director of Public Prosecutions, the aforementioned British case involving someone who had been pressured by terrorists to drive their getaway car for them while they executed their hit, and in Abbot v. The Queen, another British case, this one involving the member of a commune who had been pressured by the commune's leader to kill the girlfriend of another fellow member. In several lengthy opinions, the House of Lords worried that if we fail to excuse someone who kills because he will otherwise himself be killed we are essentially punishing people for not being heroes, and that seems unduly exacting. On the other hand, if we fail to punish we may be giving a

charter to terrorists, gangleaders and kidnappers. A terrorist of notorious violence might, e.g., threaten death to A and his family unless A obeys his instructions to put a bomb with a time fuse set by A in a certain passenger aircraft and/or in a thronged market, railway station or the like. A, under duress, does obey his instructions and as a result, hundreds of men, women and children are killed or mangled. Should the contentions made in behalf of [the defendant in this case] be correct, A would have a complete defense and, if charged, would have to be acquitted and set at liberty. Having now gained some real experience and expertise, he might again be approached by the terrorist who would make the same threats and exercise the same duress under which A would then give a repeat performance, killing even more men, women and children. Is there no limit to the number of people you may kill to save your life and that of your family? (Abbot v. The Queen; quoted in Katz, p. 68)

For a while the House of Lords split the difference, by granting a duress defense to those who merely assisted in a killing, like Lynch, but denying it to those who actually committed the killing, like Abbott. That difference came to seem too unprincipled and was later abandoned; the duress defense was once more unavailable for all cases involving homicide, whether the defendant had participated in the killing as a principal or as a mere accomplice.

Controversy has also surrounded the availability of the duress defense to prisoners who break out of prison to escape threatened rapes, assaults, or other unbearable aspects of prison life. Technically the duress defense is a little hard to apply to such cases, since the fleeing prisoner is not really being coerced into fleeing, but rather is simply fleeing to avoid being raped, beaten, or killed. But this is not the main thing that has worried courts in granting the defense. Their real worry is a practical one, namely that granting it would unduly encourage prison escapes (People v. Unger; People v. Harmon; People v. Lovercamp). The Model Penal Code, and the American jurisdictions that follow it, do not exclude any crime from the scope of the duress defense.

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