Excuse: Duress

Courts have also been much troubled by the case of the defendant who has kept bad company and thus gotten himself into the situation where someone thinks to bear pressure on him to commit a crime: the defendant who joins a gang and is then rightfully fearful about leaving it or about not doing what is asked of him, lest he be killed in retribution. Some jurisdictions deny the duress defense altogether in such cases, in which, as the Model Penal Code puts it, "the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress" (Section 2.09(2)). Other jurisdictions grant the excuse in cases of intentional wrongdoing, but deny it for crimes of recklessness. (In other words, the defendant can plead duress to a charge of murder, but not to one of manslaughter; he can plead it to a charge of mayhem, but not to one of reckless endangerment.)

Of course there will be considerable disagreement over whether the defendant is being subjected to duress because he "recklessly placed himself in a situation which it was probable that he would be subjected to duress." Should Abbott, the man who joined that Trinidad commune whose leader asked him to kill the girlfriend of another commune member, be judged to have done so? Should the prisoner who flees prison in the face of an impending rape or assault be so judged? (After all, he committed crimes that made it not unlikely that he would be caught and put in the company of other dangerous criminals.) The answer is unclear.