§ 23.03 Distinguishing Duress from Necessity

§ 23.03 Distinguishing Duress from Necessity

As noted earlier,³³ some commentators and courts treat duress as a subspecies of the justification defense of necessity, in which case the only true distinction between the traditional defenses is that duress involves human threats, whereas the necessity defense applies to natural forces.

As long as duress is recognized as an excuse defense, which it should be, it is important to see how the two defenses differ.³⁴ The necessity defense—as one of its alternative names ("lesser evil" defense) reminds us—applies "when a person is faced with a choice of two evils and must then decide whether to commit a crime or an alternative act that constitutes a greater evil,"³⁵ and the person makes the right choice. In contrast, duress applies even when the coercer's threats overwhelm the actor's will so that she makes the wrong choice, i.e., perpetrates a greater evil.³⁶

This potential difference has practical consequences. When a person commits the lesser of two evils, nobody should be subject to prosecution for the outcome, because the outcome is socially desirable or, at least, not undesirable. For example, suppose that D1 justifiably exceeds the speed limit in order to drive a gravely injured child to the hospital. Even if it later turns out that the child was in that condition as the result of wrongful conduct by X, it would be odd to say that X should be held criminally responsible for D1's justified act of speeding. X should be prosecuted for any crime she committed in relation to the child, but no more.

If a defendant is excused on the basis of duress, however, the person who coerced her may be prosecuted for the harm caused. For example, if D2 robs a bank because C threatened immediate serious physical harm to D2's husband, D2 may be excused for the crime; C, however, may be prosecuted for the robbery. This result follows from the fact that duress is an excuse rather than a justification, and there is a culpable human being who may properly be held accountable for the social harm caused.³⁷

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Notes:

^[33] See § 23.01[C], supra.

^[34] The assumption here is that necessity is a justification defense. Necessity may be an excuse defense in some circumstances. See § 23.06, infra.

^[35]...