§ 23.08 MODEL PENAL CODE

• Jurisdiction: North Carolina

§ 23.08. Model Penal Code

[A] General Rule

Duress is an affirmative defense to unlawful conduct by the defendant if: (1) she was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon her or another person;⁸³ and (2) a person of reasonable firmness in her situation would have been unable to resist the coercion.⁸⁴ The defense of duress is recognized in such circumstances, the Commentary explains, because the "law is ineffective in the deepest sense, indeed . . . it is hypocritical if it imposes on the actor . . . a standard that . . . judges are not prepared to affirm that they should and could comply with."⁸⁵

The defense is unavailable if the actor recklessly placed herself in a situation in which it was probable that she would be subjected to coercion. If she negligently placed herself in such a situation, however, the defense is available to her for all offenses except those for which negligence suffices to establish culpability.⁸⁶ This provision differs from Section 3.02, the MPC choice-of-evils defense, which is available in some circumstances to a person who recklessly causes the emergency.⁸⁷

[B] Comparison to the Common Law

[1] In General

The Code's duress defense is broader than the common law in various respects. First, it abandons the common law requirement that the defendant's unlawful act be a response to an imminent deadly threat. Under the Code, the defendant may plead duress as a result of non-deadly and non-imminent threats — or even as the result of prior use of non-deadly force—as long as a person of reasonable firmness would have committed the offense in the defendant's circumstances.

Second, the defense is one of general applicability, so the defense may be raised in murder prosecutions.⁸⁸ Third, the Code does not require that the imperiled person be the defendant or a member of her family, which was the long-ago approach at common law.

The Code defense is similar to the common law in two significant ways. First, the defense is limited to threats or use of "unlawful" force; therefore, it does not apply to coercion arising from natural sources. This results in an anomaly: If D is compelled by X to run her car over the body of V, who is lying on a narrow mountain road, D may claim duress; but if she runs over V because her brakes give out and she prefers to kill V than to die herself by driving over the cliff, D may be convicted of criminal homicide.⁸⁹

Second, in conformity with the common law, the Code does not recognize the defense when an interest other than bodily integrity is threatened. The Commentary simply states that other threats, such as to property or reputation, "cannot exercise sufficient power over persons of 'reasonable firmness' to warrant consideration."⁹⁰

[2] Escape from Intolerable Prison Conditions⁹¹

The common law duress defense applies when the coercer orders...