Duress in American law

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In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat, or other pressure against the person. 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]". Duress is pressure exerted upon a person to coerce that person to perform an act they ordinarily would not perform. The notion of duress must be distinguished both from undue influence in the civil law. In criminal law, duress and necessity are different defenses. [1] [2]

Contents

Duress has two aspects. One is that it negates the person's consent to an act, such as sexual activity or the entering into a contract; or, secondly, as a possible legal defense or justification to an otherwise unlawful act. [3] Defendants utilizing the duress defense admit to breaking the law but claim that they are not liable because, even though the act broke the law, it was only performed because of extreme, unlawful pressure. [4] In criminal law, a duress defense is similar to a plea of guilty, admitting partial culpability, so that if the defense is not accepted then the criminal act is admitted.

Duress or coercion can also be raised in an allegation of rape or other sexual assault to negate a defense of consent on the part of the person making the allegation.

Discussion

A defendant who raises a defense of duress has actually done everything to constitute the actus reus of the crime, and has the mens rea because they intended to do it to avoid some threatened or actual harm. Thus, some degree of culpability already attaches to the defendant for what was done.

In criminal law, the defendant's motive for breaking the law is generally irrelevant unless a defendant is raising an affirmative defense allowed for by law. (Duress may or may not be allowed as an affirmative defense for some particular charge – in particular, it is generally forbidden for murder, and many jurisdictions also forbid it for sexual assault. Malum in se offenses, generally, are less likely to recognize duress as a defense than malum prohibitum offenses.)

A successful affirmative defense means not that a criminal act was justified, but that the act was not criminal at all. But if no affirmative defense of duress is available, then the duress may be considered as justifying a lighter sentence, typically in proportion to the degree of duress. If the duress is extreme enough, for example, the defendant might be found guilty of murder but given a minimal, or even trivial, sentence.

In some rare cases, a successful argument of duress – even when not an affirmative defense – might result in the jury nullifying the charge by refusing to convict.

The basis of the defense is that the duress 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), thus rendering the entire behavior involuntary. Thus, the liability should be reduced or discharged, making the defense one of exculpation.

The extent to which this defense should be allowed, if at all, is a 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.[ citation needed ] 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.

A mutant of duress involves hostage taking, where a person is forced to commit a criminal act under the threat, say, that their family member or close associate will be immediately killed should they refuse (commonly known as a Tiger kidnapping). This has been raised in some cases of ransom, where a person commits theft or embezzlement under orders from a kidnapper in order to secure a family member's life and freedom. However, duress is not a complete defense to all crimes. For example, the general rule, both at common law and today, is that duress is never a defense to murder; that is, one is never justified in killing another innocent person even if one's own life has been threatened, although this part may be questioned when multiple people are threatened with death if the defendant does not kill a single or fewer people than threatened (such a situation is similar to the trolley problem). [5] A counterpart may be found in an English law, where in R v Dudley and Stephens involved a case of one man being killed to save two lives - no duress defense was available and they were convicted.

Requirements

For duress to qualify as a defense, four requirements must be met: [3]

A person may also raise a duress defense when force or violence is used to compel them to enter into a contract, or to discharge.

In contract law

Duress in the context of contract law is a common law defense brought about when one of the parties to the contract enjoyed an ascendant position in relation to the other party and abused that position by subjecting the other to threats. A party who has entered into a contract under duress is entitled to rescind or set aside the contract, rendering it voidable (in equity).

Duress is a threat of harm made to compel someone to do something against their will or judgment; especially a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition. - Black's Law Dictionary (8th ed. 2004)

Duress in contract law falls into two broad categories: [6]

Physical duress

Duress to the person

Professor Ronald Griffin, Florida Agricultural & Mechanical College of Law, Orlando, FL, puts physical duress simply: "Your money or your life." In Barton v Armstrong , [8] a decision of the Privy Council, Armstrong (defendant) sought to coerce Barton (plaintiff) into executing a deed relating to the sale of certain companies by threatening to have him murdered. While the plaintiff took the threats seriously, other business reasons existed for signing the contract. An innocent party wishing to set aside a contract for duress to the person need only prove that the threat was made and that it was a reason for entry into the contract. Furthermore, once it is established that the threat was made, the onus lies on the person who made the threat to prove that the threat made no contribution to the plaintiff's decision to enter the agreement. [9]

Common law took a narrow view of the concept of duress in that it was concerned with actual or threatened violence to the person or unlawful imprisonment. Equity, however, adopted a broader "fusion" view of what sort of pressure could constitute coercion for purposes of relief and has since prevailed. [10]

Duress to goods

In such cases, one party refuses to release the goods belonging to the other party until the other party enters into a contract with them. For example, in Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298, the contract was set aside after Hawker Pacific's threats to withhold the helicopter from the plaintiff unless further payments were made for repairing a botched paint job.

Elements of economic duress

Economic duress is the use of unlawful economic pressure to compel a party to a contract to agree to demands which they would not have otherwise. [11]

Insane duress

In criminal law, when a person is found legally insane because they believed God ordered them to do the crime ("deific-decree"), one interpretation of the insanity is that they acted under a delusion of duress by God. [12] : 615–625 

See also

Notes

  1. ↑ People v. Unger , 362 N.E.2d 319 (1977)
  2. ↑ Handbook on Criminal Law 381 (1972)
  3. 1 2 Gaines, Larry; Miller, LeRoy (2006). Criminal Justice In Action: The Core . Thomson/Wadsworth. ISBN   0-495-00305-0.
  4. ↑ "1st Class Investigations Glossary".
  5. ↑ People v. Anderson, 8 Cal. 4th 767, 50 P.3d 368, 122 Cal. Rptr. 2d 587 (2002).
  6. ↑ "Duress : Introduction to Contracts Law".
  7. ↑ See Pao On v Lau Yiu Long [1979] 3 All ER 65; Pao On v Lau Yiu Long; Applied in Con Ange v Calogo Bloodstock AG t/as Coolmore Australia [2012] NSWSC 666.
  8. ↑ Barton v Armstrong [1976] AC 104 BAILII
  9. ↑ See Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40, 46.
  10. ↑ See J Paterson, A Robertson and A Duke, Principles of Contract Law, (4th edn Thomson Reuters 2012)
  11. ↑ "Universe Tankships Inc of Monrovia v International Transport Workers Federation (The Universe Sentinel) [1981] UKHL 9". Bailii. Retrieved 9 August 2015.
  12. ↑ Criminal Law - Cases and Materials, 7th ed. 2012, Wolters Kluwer Law & Business; John Kaplan, Robert Weisberg, Guyora Binder, ISBN   978-1-4548-0698-1,

Related Research Articles

Coercion involves compelling a party to act in an involuntary manner by the use of threats, including threats to use force against that party. It involves a set of forceful actions which violate the free will of an individual in order to induce a desired response. These actions may include extortion, blackmail, or even torture and sexual assault. For example, a bully may demand lunch money from a student where refusal results in the student getting beaten.

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

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<span class="mw-page-title-main">Affirmative defense</span> Category of defense strategies that allege mitigating circumstances to achieve acquittal

An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of frauds, waiver, and other affirmative defenses such as, in the United States, those listed in Rule 8 (c) of the Federal Rules of Civil Procedure. In criminal prosecutions, examples of affirmative defenses are self defense, insanity, entrapment and the statute of limitations.

<span class="mw-page-title-main">Intimidation</span> Intentional behaviour meant to cause a person humiliation, embarrassment, and discomfort

Intimidation is a behaviour and legal wrong which usually involves deterring or coercing an individual by threat of violence. It is in various jurisdictions a crime and a civil wrong (tort). Intimidation is similar to menacing, coercion, terrorizing and assault in the traditional sense.

In common law, assault is the tort of acting intentionally, that is with either general or specific intent, causing the reasonable apprehension of an immediate harmful or offensive contact. Assault requires intent, it is considered an intentional tort, as opposed to a tort of negligence. Actual ability to carry out the apprehended contact is not necessary. 'The conduct forbidden by this tort is an act that threatens violence.'

A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will in order to compensate for the harm of a wrongful act inflicted upon an individual.

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In English law, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which the defence of necessity has succeeded, and in general terms there are very few situations where such a defence could even be applicable. The defining feature of such a defence is that the situation is not caused by another person and that the accused was in genuine risk of immediate harm or danger.

Duress in English law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another. The doctrine arises not only in criminal law but also in civil law, where it is relevant to contract law and trusts law.

<i>Quinn v Leathem</i>

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Marital coercion was a defence to most crimes under English criminal law and under the criminal law of Northern Ireland. It is similar to duress. It was abolished in England and Wales by section 177 of the Anti-social Behaviour, Crime and Policing Act 2014, which came into force on 13 May 2014. The abolition does not apply in relation to offences committed before that date.

Unconscionability in English law is a field of contract law and the law of trusts, which precludes the enforcement of voluntary obligations unfairly exploiting the unequal power of the consenting parties. "Inequality of bargaining power" is another term used to express essentially the same idea for the same area of law, which can in turn be further broken down into cases on duress, undue influence and exploitation of weakness. In these cases, where someone's consent to a bargain was only procured through duress, out of undue influence or under severe external pressure that another person exploited, courts have felt it was unconscionable to enforce agreements. Any transfers of goods or money may be claimed back in restitution on the basis of unjust enrichment subject to certain defences.

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References

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