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19 Crim. Just. Ethics 3 (2000)
Duress and Culpability

handle is hein.journals/crimjeth19 and id is 59 raw text is: Duress and Culpability / 3 ARTICLES Duress and Culpability MICHAEL GORR Suppose Smith knowingly drives the getaway car for a gang of bank robbers. This would normally be grounds for charging him with being an accessory to the crime of robbery. One way in which he might defend himself, however, is by convincing the court that he performed the act in question only because he was threatened with death if he refused. But why would establishing this be enough to eliminate his liability? The answer usually given is that the threat of death constituted duress and that duress negates culpability, an essential element of nearly every crime.' In this paper I hope to contribute to both the conceptualization and the moral assessment of duress, which is among the most controversial and philo- sophically interesting of all the criminal law defenses. In part I, I begin by examining the tangled issue of the rela- tionship between this defense and that of necessity. I criti- cize both the traditional way of distinguishing the two (by reference to the source of the pressure on the defen- dant to violate the law) as well as attempts to assimilate one to the other. My central contention will be that duress constitutes a defense independent of necessity because, unlike the latter, it impugns the defendant's culpability without implying that his act was socially desirable. Whether this means that it should be classified as an excuse (the dominant contemporary view) will be ex- plored in part II. There I critically analyze some recent at- tempts to demonstrate not only that duress should not be understood in this way but also that it cannot be accom- modated by any of the categories in the traditional classi- ficatory scheme for criminal law defenses. In the conclud- ing section, I offer my own account of how duress func- tions to remove culpability, an account that, I argue, has some significant advantages over alternative proposals. I Distinguishing Duress from Necessity Compare the following two hypotheticals: (i) Toprevent a raging forest fire from engulfing a town, Sam burns the MacGregor farm (without MacGregor's permission) in the hope of creating a firebreak He is later charged with arson. (ii) Theonly wayMarycan avoid beingshotby Boris (who is holding a gun to her head) is by acceding to his demand that she bum MacGregor's farm. She does so and is then charged with arson. Sam would undoubtedly attempt to defend himself by claiming that he did nothing wrong inasmuch as he chose the lesser of two evils (and that there was no other, less costly, way of preventing the harm in question). Since this Michael Gorr, author of Coercion, Freedom and Exploita- tion, is Professor of Philosophy at Illinois State University is a standard textbook illustration of necessity,2 he would surely prevail in any jurisdiction which recognized that defense. Mary, on the other hand, would probably claim that she acted under duress and hence was not respon- sible for what she did. But what distinguishes the two defenses? It is true that Sam's act was the result of a natural threat and that Mary's was the result of a hu- man one, but is that really significant? Given that the loss of property is universally conceded to be a lesser evil than the loss of life, Mary's choice to favor the latter over the former seems every bit as reasonable as Sam's.3 The requirements of duress under the common law have been summarized as follows: D [the accused] will be acquitted of an offense other than murder on the basis of duress if he pleads and proves that (1) C [some Summer/Fall 2000