Necessity and Duress

Excuses, unlike justifications, do not assert that an action was morally right: instead, they deem an action to have been wrong, but less blameworthy under the circumstances. Every category of excuse, however, raises problems. In the case of duress, the question becomes what level of duress is necessary to excuse a crime, and what crimes can it excuse? As you will see, there is both a traditional duress doctrine and a reformed doctrine promoted by the Model Penal Code. Consider the differences between duress (an excuse) and necessity (a justification). What is the distinction between them, and why does blameworthiness attach to one but not the other?

The defense of necessity: 

“The defense of necessity can arise in a myriad of circumstances, but is rarely successful. It is most often invoked successfully when an actor encounters the following dilemma: As a result of some natural (non-human) force or condition, he must choose between violating a relatively minor offense, on the one hand, and suffering (or allowing others to suffer) substantial harm to person or property, on the other hand. For example, the necessity defense applies if a sailor violates an embargo by putting into a foreign port due to dangerous and unforeseeable weather conditions, a person drives on a suspended license in order to take a loved one to the hospital in a life-endangering emergency, or a motorist exceeds the speed limit in order to pass another car and move to the right lane, so that an emergency vehicle can pass.”

The defense of duress:

“The contours of duress defense differ by jurisdiction. However, very generally speaking, a person will be acquitted of any offense except murder if the criminal act was committed under the following circumstances: (1) another person threatened to kill or grievously injure the actor or a third party unless she committed the offense; (2) the actor reasonably believed that the threat was genuine; (3) the threat was “present, imminent, and impending” at the time of the criminal act; (4) there was no reasonable escape from the threat except through compliance with the demands of the coercer; and (5) the actor was not at fault in exposing herself to the threat.” [1]

[1] Joshua Dressler, Understanding Criminal Law, 198 (Carolina Academic Press, 8th ed., 2018).