§ 23.06 SITUATIONAL DURESS: BRIEF OBSERVATIONS

• Jurisdiction: United States

§ 23.06. Situational Duress: Brief Observations

[A] The Simplest Case: Necessity as an Excuse⁶⁶

Reconsider Dudley and Stephens,⁶⁷ in which desperately hungry survivors on a lifeboat killed one of their number — a sick, defenseless youth — in order to eat his remains to survive. The two defendants were denied a necessity defense. One can defend this outcome, although not all do, on the ground that it is never morally justifiable to kill an innocent person or, in a more limited manner, for example, on the ground that no justifiable method was used to choose the victim.

But, even if the defendants in that case did act unjustifiably, does it follow that they should also be denied an excuse defense? Under traditional doctrine, the duress defense does not apply. Not only is duress not a common law defense to murder, but even if it were, it would not apply here because the duress defense only applies to human threats, whereas Dudley and Stephens involved a threat emanating from a natural source (starvation).

Is a conviction for murder morally just in such circumstances? If a defense were recognized in the lifeboat case, it might be called "situational duress" (or "duress by circumstances," a phrase used in English law), to distinguish it from duress claims involving human-induced coercion. Or, the defense of necessity could be enlarged to include an excuse component, to deal with natural forces that compel a person to commit an equal or greater evil, rather than a lesser one.

Opponents of such a new defense argue that in ordinary duress cases "the basic interests of the law may be satisfied by prosecution of the agent of unlawful force,"⁶⁸ namely, the coercer. Thus, if C compels D to rob a bank, D is excused, but C can be convicted of the crime he compelled D to commit. However, in a situational duress case—where the "coercer" is a natural force—there is nobody who can be subjected to the law's application. Therefore, critics maintain, society's valid interest in punishing someone for wrongful behavior requires that the law not recognize a situational duress defense. The difficulty with this argument is that it fails to explain why we legally excuse the insane person, since nobody there is subjected to punishment for the social harm caused by the mentally ill offender. Sometimes the law, as in life, cannot punish anyone for harms that occur.

The argument for recognizing such a defense is that natural threats can be as compelling as human ones. Therefore...