Excuse: Duress

The defense of duress is typically invoked when someone has been pressured into committing a crime by another person's threat. According to the Model Penal Code, an actor is excused in committing a crime if "he was coerced to do so by the use, or the threat to use unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist" (Section 209(1)). The defense has been raised, for instance, by a chiropractor who claimed to have been forced to file false medical claims in behalf of a gangster who threatened to kill him otherwise. It was raised by a wife who claimed that the only reason she helped her husband commit a bank robbery is that he would have killed her if she had not. It was raised by a drug smuggler who was caught with several cocaine-filled balloons in his stomach: he argued that both he and his family would have been killed if he hadn't done as he did. Likewise for the driver of the getaway car in a terrorist hit; and the member of a Trinidad commune who killed the girlfriend of another commune member on the instructions of the commune leader. In each of these cases the perpetrator of a serious crime insisted that the duress of being threatened with death, or of seeing his family threatened with death, should excuse him and should result in his acquittal.

The defense has an ancient lineage. It was already recognized in Roman law. Renowned commentators—Blackstone and Hale, for example—and countless judges over the centuries have treated it as a well-established part of the common law. Yet despite this ancient lineage, there are periodic calls for its abolition and persistent questions about its scope and rationale.

A soldier who knowingly obeys an illegal order from a superior will not be able to invoke the duress defense, unless he was threatened with great physical harm for disobedience. Strangely enough, in days of yore, a wife who obeyed her husband's order to commit a crime, automatically was granted the duress defense. That rule has now been entirely repudiated.