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:For English law on the criminal defence, see duress in English law. For contract law, see Duress (contract law) Duress or coercion (as a term of jurisprudence) is a possible legal defense, usually as exculpation rather than excuse, 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 or coercion 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.
Discussion 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. 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 deliberately to 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. For example, suppose that a group of terrorists kidnap A's family and instruct A to carry a large bomb into a crowded area as the price for their safe release. If A carries out these instructions, making no effort to contact the police or to warn those in the danger area, the issue of liability for death and injury resulting depends on whether the state wishes to encourage terrorists to use local citizens of well-known reputation as their bomb carriers. This is not a legal but a political decision. See also | ||||||||
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