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The Criminal Defense of Duress:

A Justification, Not an Excuse

And Why It Matters

Peter Westen

James Mangiafico

The defense of duress arises rarely in court, and yet forscholars it remains both the most difficult defense toconceptualize and justify and among the mostcontroversial and philosophically interesting of all thecriminal law defenses.1 The central challenge is to explainwhy defenses of duress, including Model Penal Code section2.09, typically provide actors with greater protectionagainst manmade threats than defenses of necessityprovide against natural threats.2 The challenge persistsbecause, while the distinction between manmade andnatural threats is deeply embedded in the law, scholarsregard it as illogical and unjustified.3

Scholars respond in various ways to what they regardas this apparently spurious distinction in the law.4 Some

Frank G. Millard Professor of Law, University of Michigan.

J.D., University of Michigan (2002), Ph.D. (Philosophy), Vanderbilt (1996).We are indebted and profoundly grateful to Kenneth Simons for exchanges last

year that led to our writing this article; to Phoebe Ellsworth for referring us to

scholarship on the psychology of threats; to Larry Alexander, Joshua Dressler,

Kyron Huigens, Sandy Kadish, and Lloyd Weinreb for generously providing long

and thoughtful written comments on an earlier draft; and most especially to R.A.

Duff, Claire Finkelstein, and Mitch Berman for forcing us to rethink and

reformulate essential elements of our thesis.

1. John Hill, A Utilitarian Theory of Duress, 84 Iowa L. Rev. 275, 276 (1999)

(most difficult); Michael Gorr, Duress and Culpability, Crim. Just. Ethics,

Summer/Fall 2000, at 3 (most controversial).

2. For discussion of Model Penal Code section 2.09, and the extent to which it

provides greater protection than the defense of necessity, see infra text and

accompanying notes 44-45.

3. For commentators who question the distinction, see infra notes 58, 180.

4. Claire Finkelstein, Duress: A Philosophical Account of the Defense in Law,37 Ariz. L. Rev. 251, 281 (1995) (spurious).


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834 BUFFALO CRIMINAL LAW REVIEW [Vol. 6:833

simply ignore it, as do courts.5 Most, however, seek toeliminate the inconsistency by recommending reforms indefenses of duress and necessity. Conservative reformers,

believing themselves to be defenders of common lawdefinitions of duress, argue that the defense of duress toconduct in response to manmade threats ought to be nogreater than common law defenses of necessity to conductin response to natural threats.6 In contrast, liberalreformers, agreeing with the Model Penal Code that actorsought to have a defense to threats that persons ofreasonable firmness would be unable to resist, argue thatthe latter defense of duress ought to be reconceptualized assituational duress to encompass all such threats,regardless of whether they are manmade or natural inorigin.7

This doctrinal conflict, though important in its ownright, is part of a broader and more significant disputeamong commentators about the nature of criminaldefensesa dispute about the balance between defenses of

justification and defenses of excuse. Conservativesmaintain that the defense of duress is valid only if it is aspecies of justification (i.e., a defense which consists of anactors choosing the lesser of two evils), and that duress isa species of justification only if it is confined to the kinds ofmanmade threats that, were they natural in origin, wouldsuffice to constitute defenses of necessity.8 Liberals, who

agree that neither Model Penal Code duress nor situationalduress can be explained as a defense of justification,nevertheless defend them on the ground that they areeither defenses of excuse or distinctive defenses which areneither justification nor excuse.9 Virtually no one argues

5. See id. at 257.

6. See, e.g., 1 Wayne LaFave & Austin Scott, Substantive Criminal Law,

5.3(a) and text accompanying nn.52-53 (1986); Jerome Hall, General Principles of

Criminal Law 448 (2d ed. 1960) (1947); Glanville Williams, Criminal Law: The

General Part 755 (2d ed. 1961) (1953).

7. For commentators who embrace a defense of situational duress, see infra

note 58.

8. See supra note 6.9. For commentators who conceptualize duress as an excuse, see infra note


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2003] THE CRIMINAL DEFENSE OF DURESS 835

that modern defenses of duress like section 2.09 can berationalized as a defense of justification.10

Startlingly as it may sound, we believe that

conservatives and liberals are mistaken in each of theaforementioned respects. The defense of duress has neverbeen confinednor is it confined today in common law

jurisdictionsto manmade threats that are the equivalentof the natural threats that constitute necessity. Thedistinction between manmade threats and natural threatsis not spurious but rather is as valid as the rules thatunderlie conventional defenses of necessity and self-defense. Duress is, indeed, a defense of justification;however, its status as a defense of justification does notdepend upon its being confined to its scope at common lawbut rather is consistent with the way the Model Penal Codedefines it. And finally, and perhaps most importantly, theModel Penal Code defense of duress cannot beconceptualized as an excuseor as something that isneither justification nor excusewithout subvertingwidely-shared and deeply-settled understandings ofcriminal responsibility.

We further believe that these misconceptions on thepart of conservative and liberal commentators are theproduct of a common fallacya fallacy concerning thestandard by which evils are measured for purposes of thechoice-of-evils defense. The standard by which evils are

measured is not one that places evils in a single rankedorder for all purposes. Rather, the appropriate standard is

60. For commentators who rationalize duress as a third sort of defense which is

neither justification nor excuse, see infra note 61.

10. Alan Wertheimer appears to stand alone in arguing that expanded

defenses of duress like the Model Penal Codes can be understood as instances of

justification. See Alan Werthheimer, Coercion 164-69 (1987). However, the

reason which Wertheimer advances is not persuasive. Duress is a broader

defense than necessity, he argues, because it takes account of an actors

legitimate agent-relative interests to value himself and his loved ones more than

other persons. We agree that duress ought to take account of agent-relative

interests. But that alone fails to distinguish duress from situations of necessity

where actors, too, must choose between either suffering harm (or allowing loved

ones to suffer harm), on the one hand, or inflicting harm, on the other. See Hill,supra note 1, at 306-07.


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a moralized or contextualized one that is capable ofranking the same evils differently, depending upon therelationships among the parties and the causal nature of

resulting harms. Accordingly, an evil which is greater thananother when inflicted upon a bystander can become lessthan, or equal to, the other evil when inflicted upon anaggressor; and an evil which is greater than another whenit is initiated by an actor can become less than, or equal to,the other evil when it is simply redirected by an actor. Bythe same token, we shall argue, evils which are greaterthan other evils when actors inflict them upon bystandersin the context of two-party relationships of necessity canbecome less than, or equal to, the latter evils when actorsinflict them upon bystanders in the context of three-partyrelationships of duress.

We shall develop the argument in three parts. Part Iidentifies the features that characterize what we shall callconventional defenses of duress, a term that includes bothcommon law definitions of duress and the Model PenalCodes expanded definition of duress but that excludesdefenses of situational duress. Part II criticizes twoalternative attempts to account for conventional laws ofduressnamely, the effort to defend the common lawdefenses of duress as instances of justification, and theeffort to defend the Model Penal Code as an instance ofsomething other than justification. Part III develops an

alternative account of conventional defenses of duressbased upon an alternative understanding of the choice-of-evils defense. We argue that the three features thatdistinguish threatened harms in the context of duress fromother threatened harms, i.e., that the former threats are (i)unlawful, (ii) manmade, and (iii) purposefully coercive,combine to affect the magnitude that threatened harmspossess for purposes of the choice-of-evils defense.

I. CONVENTIONAL DEFENSES OF DURESS

All Anglo-American jurisdictions treat duress as a

defense to criminal conduct, regardless of whether they do


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so by means of explicit statutes or judge-made rules.11Defenses of duress differ considerably from jurisdiction to

jurisdiction. Nevertheless, with a few exceptions, the

defenses share three essential features that distinguishthem from the defenses of necessity and self-defense. It isthe possession of these three features that constitute whatwe call conventional defenses of duress.

We shall proceed in this Part by, (A) defining severalessential terms that we shall be using throughout thearticle, and (B) identifying the three features thatdistinguish conventional defenses of duress from defensesof necessity and self-defense.

A. Some Definitions of Terms

Scholars tend to analyze the criminality of hardchoices by reference to relationships among aggressors andinnocent bystanders.12 Unfortunately, they do not alwaysdefine what they mean by aggressors and bystanders.To avoid misunderstanding, we intend to use the two termsin the following ways:

1. Bystanders

A bystander is a person whose interests the criminallaw presumptively safeguards against threats that are at

hand, regardless of whether the threats are natural ormanmade. A person is a bystander vis--vis a threat of amanmade invasion if he possesses an interest that thecriminal law safeguards by presumptively making theinvasion of it an offense and/or by presumptivelyprivileging the person to evade the threat by committing

11. See 1 LaFave & Scott, supra note 6, 5.3(a). For state and federal

defenses of duress within the United States, see 2 Paul Robinson, Criminal Law

Defenses, ch. 5, 177(a), at 348-49 n.1 (1984). For English defenses of duress, see

Alan Reed, The Need for a New Anglo-American Approach to Duress, 61 The J.

Crim. L. 209 (1997).

12. See, e.g., Larry Alexander, A Unified Excuse of Preemptive Self-

Protection, 74 Notre Dame L. Rev. 1475 (1999); Jeremy Waldron, Self-Defense:Agent-Neutral and Agent-Relative Accounts, 88 Cal. L. Rev. 711 (2000).


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what would otherwise be an unlawful invasion of anothersinterests. In turn, a person is a bystander vis--vis anatural threat if he possesses an interest that the criminal

law safeguards by presumptively privileging him to evadethe natural threat by committing what would otherwise bean unlawful invasion of anothers interests. Thus, anowner of a shipment of cargo who is threatened withrobbery of the cargo is a bystander because the criminallaw presumptively makes it an offense to deprive him of hisproperty by means of force, and because the lawpresumptively privileges him to use force against therobber to evade the threat.13 In turn, an owner of cargo atsea who is threatened with its loss in a storm is abystander because the criminal law presumptivelyprivileges him to commit what would otherwise be acriminal trespass of a dock owners property by lashing hisship to the owners dock to prevent the cargo from beingdestroyed.14

Now to say that the criminal law presumptivelysafeguards a bystanders interest is not to say that thecriminal law is committed to safeguarding the interest allthings considered. For circumstances may arise thatnegate or override the criminal laws tendency to safeguarda bystanders interest against a threat. Assume, forexample, that a storm arises at sea that puts a captain tothe choice between either allowing the ship to go down, on

the one hand, or jettisoning an owners lawful cargo, on theother. The owners cargo is a property interest that thecriminal law presumptively safeguards by makinginvasions of it an offense (e.g., the offense of robbery) andby privileging cargo owners to evade threats to it by

13. See, e.g., Model Penal Code 221.1, 3.06(1)(a) (Proposed Official Draft

1962).

14. See George Christie, The Defense of Necessity Considered From the Legal

and Moral Points of View, 48 Duke L.J. 975, 988-89 (1999). Cf. Vincent v. Lake

Erie Transp. Co., 124 N.W. 221 (Minn. 1910); Restatement (Second) of Torts

263(1) (1965) (One is privileged to commit an act which would otherwise be a

trespass to the chattel of another or a conversion of it, if it is . . . reasonable and

necessary to protect the person or property of the actor, the other or a thirdperson from serious harm . . . .).


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invading the interests of others (e.g., the privilege of anowner to lash a ship carrying his cargo to the dock ofanother). But circumstances of the storm negate the

criminal laws inclination to safeguard the cargo becauseunder those circumstances the criminal law not onlyprivileges the captain to jettison the cargo, but also makesit an offense for the cargo owner to use force to resist the

jettisoning.15

2. Aggressors

An aggressor is a person who threatens a bystander;that is, he is a person who invades or threatens to invadean interest on the part of another that the criminal lawpresumptively safeguards. However, becausepresumptively safeguarding an interest is not the sameas safeguarding it all things considered, aggressors fallinto two further categories:

Privileged Aggressors versus Non-privilegedAggressors. All aggressors are either privileged ornon-privileged with respect to their aggression. Aprivileged aggressor is an aggressor whose invasion orthreatened invasion of a bystanders interest is lawfulconduct under the circumstances.16 And an aggressorsconduct is lawful if he has a legitimate and sufficinginterest in engaging in it under the circumstancesthat

is, if the criminal law does not wish to discourage ordeter him from engaging in it under the circumstances.Thus, a captain who jettisons cargo under circumstancesof a storm is a privileged aggressor vis--vis the cargo

15. See Model Penal Code 3.02, cmt. at 9 (Official Draft and Revised

Comments 1980); George Fletcher, Rethinking Criminal Law 760-61 (1978). Cf.

Ploof v. Putnam, 71 A. 188 (Vt. 1908).

16. We use privilege as Wesley Hohfeld does, to refer to a legal relationship

in which an actor has no duty in criminal law not to engage in conductthat is, a

relationship in which others persons have no right that the criminal law be

invoked to prevent him from engaging in the conduct. See Wesley Newcomb

Hohfeld, Fundamental Legal Conceptions 38-50 (Walter Wheeler Cook ed., 1923).

For an illuminating exposition of Hohfelds taxonomy, see Carl Wellman, ATheory of Rights: Persons under Laws, Institutions, and Morals 161-69 (1985).


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owner because the criminal law does not wish todiscourage or deter the captain from the jettisoningunder the circumstances. In contrast, a non-privileged

aggressor is an aggressor whose conduct is unlawful,that is, an aggressor who has no legitimate and sufficinginterest in engaging in his conduct under thecircumstances and, hence, an aggressor whose conductthe criminal law wishes to deter, all things considered.Thus, a cargo owner who uses force to prevent othersfrom jettisoning his cargo to save a ship is a non-privileged aggressor vis--vis the others on the ship,because the criminal law makes it an offense for him toprevent the jettisoning of his cargo under thecircumstances.

Now to say that a person like the cargo owner is anon-privileged aggressor is not necessarily to say thathe is punishable. It simply means that, even though hemay possess other criminal defenses, he does not possessthe defense that consists of having a legitimate andsufficing interest in engaging in conduct under thecircumstances. For a person may do something that hehas no legitimate interest in doing and, yet, possessindependent defenses to being punished for it, includingdefenses of immunity, immaturity, insanity,involuntariness, and mistake. Thus, the fact that aforeign diplomat who kills a rival possesses a defense of

immunity to being punished for murder does not meanthat the criminal law is indifferent to the murder.Rather, it means that although the criminal law publiclydeclares the murder to be undesirable (and to that extentwishes to deter diplomats from committing it), thecriminal law has reasons for exculpating foreigndiplomats that are independent of the fact that it regardsmurder as undesirable.Rightful Aggressor versus Non-rightfulAggressor. All aggressors are also rightful or non-rightful with respect to bystander and third-partyresistance, depending upon whether or not they have a

right in criminal law that bystanders and third parties


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be deterred from resisting the aggression.17 A rightfulaggressor is an aggressor who has a right in criminal lawthat bystanders and third parties be deterred from

resisting him under the circumstancesthat is, anaggressor with respect to whom bystander and third-party resistance is unlawful under the circumstances. Anon-rightful aggressor, in turn, is an aggressor whoseaggression a bystander or third parties have a privilegeto resist. Thus, a captain of a foundering ship is arightful aggressor vis--vis the owner of cargo that thecaptain seeks to jettison, because the criminal law makesit an offense for the cargo owner to resist the jettisoningof his cargo. By the same token, in the event the cargoowner uses force to protect his property, he becomes anon-rightful aggressor vis--vis the captain, because thecaptain has a privilege to resist the owners use of force.

Typically, an aggressor who is privileged to invade abystanders interests also has an accompanying right thatthe bystander and third parties not resist, and vice versa.But the two sets of relationships do not always align. Anactor may have a lawful privilege to do something thatanother actor has a comparable privilege to resist.18Consider, for example, the relationship between a prisoninmate and a prison guard in jurisdictions that privilegeinmates to flee prison to escape intolerable prisonconditions while simultaneously privileging guards to

prevent escape.19

The inmate is a privileged aggressor vis--vis the public; and yet the guard is also a privilegedaggressor vis--vis the inmate because the criminal law

17. We use right in the way Hohfeld uses claim right, namely, to refer to a

relationship in which a person has a claim that the criminal law be invoked to

prevent another person from engaging in conductthat is, a relationship in

which the other person has a duty to refrain from engaging in conduct. See

Hohfeld, supra note 16, at 35-64.

18. See Two Sailors and a Plank, infra notes 75-76. See generally Joshua

Dressler, New Thoughts About the Concept of Justification in the Criminal Law:

A Critique of Fletchers Thinking and Rethinking, 32 UCLA L. Rev. 61, 87-89

(1984) [hereinafter New Thoughts].

19. See David Dolinko, Intolerable Conditions as a Defense to Prison Escape,

26 UCLA L. Rev. 1126, 1178 (1979); Heidi Hurd, Justification and Excuse,Wrongdoing and Culpability, 74 Notre Dame L. Rev. 1551, 1569 (1999).


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does not seek to discourage or deter eithers conduct underthe circumstances. By the same token, an actor may lack aprivilege to do something that his victim also lacks a

privilege to resist. Thus, consider the relationship betweena policeman and a victim of an unlawful arrest in a

jurisdiction in which victims of unlawful arrest areprohibited from using force to resist. The policeman is anon-privileged aggressor vis--vis the arrestee because thecriminal law makes the policemans conduct an offense.

Yet the policeman is nevertheless a rightful aggressor vis--vis the arrestee because the arrestee has no privilege toresist the unlawful arrest.

3. Bystanders/Aggressors

It is implicit in these definitions that persons cansimultaneously be bystanders in one respect andaggressors in others. Thus, a captain who jettisons cargo tosave a ship is both a bystander and an aggressor: abystander vis--vis the threat of the storm and a privilegedand rightful aggressor vis--vis the cargo owner whoseproperty he jettisons. Similarly, the cargo owner can be abystander in one respect and an aggressor in another: abystander vis--vis the captains threat to invade hisproperty interest in the cargo and a non-privileged andnon-rightful aggressor in the event he uses force against

the captain to protect his property.

B. Three Essential Features of Conventional Defenses ofDuress

Conventional duress possesses three features thatdistinguish it from necessity and self-defense.Conventional duress (1) is a tripartite relationship, (2)involves purposefully coercive threats, and (3) provides adefense that is lesser than self-defense and yet greaterthan necessity.


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1. A Tripartite Relationship

In contrast to necessity and self-defense (which either

may consist or must consist of two-party relationships)conventional duress invariably consists of three-partyrelationships. Conventional duress is a tripartiterelationship between a non-privileged aggressor and abystander-victim, mediated by an actor who is both abystander (vis--vis the non-privileged aggressor) and aprivileged aggressor (vis--vis the bystander-victim).Conventional duress is a criminal defense that an actorpossesses to invading (or attempting to invade) certaininterests on the part of bystander-victims when the reasonthe actor commits the invasion is that a third-partyaggressor induces him to do so by unlawfully threateningotherwise to harm the actor in certain ways.20

It is precisely this feature of being a tripartiterelationship that distinguishes conventional duress fromso-called situational duress (and so-called duress ofcircumstances).21 Situational duress is a two-partyrelationship between two bystanders, B and V, the first ofwhom (B) also becomes an aggressor vis--vis the second(V) in response to external threats against B, whethernatural or manmade, that a person of reasonable firmnessin Bs situation would be unable to resist. The defense ofsituational duress is indifferent as to whether or not

threats against B come from non-privileged aggressors.

20. See 2 Robinson, supra note 11, at text accompanying nn.14-15 ([T]he

duress defense requires that the compulsion derive from some human source.

Indeed, the requirement of a human source is often the characteristic used to

distinguish duress from necessity.) (citations omitted); Glanville Williams, supra

note 6, at 757 (Duress is a species of necessity, in that it is necessity created by

the illegal conduct of another, and not by natural forces). For discussion of the

requirement that threats be unlawful, see infra note 197.

21. American commentators tends to use the term situational duress, while

the English, following, Regina v. Conway, [1989] 1 Q.B. 290, tend to use the term

duress of circumstances. Compare Joshua Dressler, Understanding Criminal

Law 285 (2d ed. 1995) [hereinafter Understanding Criminal Law], with Reed,

The Need for a New Anglo-American Approach to Duress, supra note 11, at 221.See also Regina v. Cairns, 2 Crim. App. R. 137 (1999).


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For it assesses threats without reference to whether theyare manmade in origin.22

As a tripartite relationship, conventional duress differs

from self-defense and necessity alike. It differs from self-defense because self-defense is a two-party relationshipbetween a non-privileged aggressor,A, and a bystander,B.Self-defense is a right that B possesses to protect himselffrom As non-privileged and non-rightful aggression bycommitting privileged and rightful aggression against Ahimself. Suppose, for example, that a woman whopossesses no other way of defending herself against anattempted rape shoots and kills her assailant. Thewomans use of force is both privileged and rightful:privileged, in being force that the criminal law does notwish to deter her from invoking; and rightful, in being forcethat the assailant has no privilege to resist. The assailantsthreatened rape, in turn, is neither privileged nor rightful,because it is force that criminal law does seek to deter himfrom invoking and that the woman does have a privilege toresist.

To be sure, self-defense can also arise in a three-partycontext in which an intervener invades interests of a non-privileged aggressor to prevent the latter from unlawfullyinvading the interests of a bystander. Thus, just as awoman is privileged to use lethal force to protect herselffrom rape, an intervener is also privileged to use lethal

force to protect the woman from rape.23

Nevertheless, thethree-party relationship of defense of others remainsderivative of the two-party relationship of self-defense in away that the three-party relationship of duress is notderivative of anything else; for the right of a third-partyintervener to defend bystanders against unlawfulaggression is only as great as the right of bystanders to

22. Because the defense of situational duress differs from conventional duress,

we shall put it aside for the time being; but once we have made a case for the

normative distinctiveness of conventional duress in Part III, we shall revisit it.23. See Model Penal Code 3.05 (Proposed Official Draft 1962).


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defend themselves (or what he reasonably believes to betheir right to defend themselves).24

As a three-party relationship, the conventional defense

of duress also differs from the defense of necessity.Necessity is a defense that either is confined to two-partyrelationships or includes two-party relationships,depending upon how jurisdictions define it.

Defenses of Necessity that are Confined to Two-party Relationships. Some jurisdictions definenecessity as a relationship between two bystanders,namely, a threatened bystander, B, and his bystander-

victim V. Necessity, in such jurisdictions, is a privilegethat bystanderB possesses to protect himself solely froma natural threat by inflicting a lesser evil onbystander-victim V.25 WhetherBs aggression against V

24. See Suzanne Uniacke, Permissible Killing: The Self-Defense Justification

of Homicide 48 n.70, 178-81 (1994). To say that the privilege of third persons to

defend others is no greater than the privilege of the latter to defend themselves is

not the same as saying that the privilege of third persons to defend others is as

great as the privilege of the latter to defend themselves. For a person may have

an agent-relative privilege to defend himself that provides no agent-neutral

reason for a third person to defend him. See Finkelstein, supra note 4, at 281.

Assume, for example, that a child threatens a victim with grievous bodily injury

that can be negated only by killing the child; assume further that the victim

prefers to suffer the injury than have the child killed. It is not clear that a third

person is privileged to protect the victim from a harm from which the victim

would rather not be protected under the circumstances.

25. See 1 LaFave & Scott, supra note 6, 5.4(a) (citations omitted):The pressure of natural physical forces sometimes confronts a person in an

emergency with a choice of two evils: either he may violate the literal terms

of the criminal law and thus produce a harmful result, or he may comply

with those terms and thus produce [an alternative] harm. For reasons of

social policy, if the harm which will result from compliance with the law is

greater than that which will result from violation of it, he is by virtue of the

defense of necessity justified in violating it.

. . . With the defense of necessity, the traditional view has been that the

pressure must come from the physical forces of nature (storms, privations)

rather than from other human beings. (When the pressure is from human

beings, the defense, if applicable, is called duress rather than necessity).

Although has no general defense of necessity comparable to Model Penal Code

section 3.02, the English courts nevertheless treat some natural threats as

defenses under the rubric of duress of circumstances. See Reed, The Need for a

New Anglo-American Approach to Duress, supra note 11, at 221; Alan Reed,Duress and Provocation as Excuses to Murder: Salutary Lessons from Recent


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is not only privileged but rightful depends upon whetherVhas a privilege under the circumstances to resist theaggression. In some cases the threat toB is so great as

compared to Vs invaded interest that Vhas no privilegeto resist, thereby rendering Bs aggression rightful.Thus, the threat to the captain of losing his ship and thelives of everyone on board is so great compared to thecargo owners property interest that the cargo owner hasno privilege to resist the captains jettisoning it. In othercases, however, the relationship between the two evils issuch as to give Va privilege to resist, thereby rendering

Bs aggression non-rightful. Thus, it has long been saidthat when two shipwrecked sailors on a plank will bothdie unless one of them is pushed off, each sailor isprivileged to push the other off.26 In both cases, however,the defense of necessity is confined to relationshipsbetween two parties, both of whom are bystanders.Defenses of Necessity that Include Two-partyRelationships. In other jurisdictions, including thosethat follow the Model Penal Code (MPC), the defense ofnecessity is not confined to responses to natural threatsand, hence, not confined to two-party relationships. TheMPC provision on necessity provides B with a privilegeto protect himself from any threat, including a manmadethreat from an aggressor that he can evade only bycommitting an invasion ofVs interests that is a lesser

evil as measured by the standard that governs therelationship between natural threats and invasions ofVsinterests.27 Thus, under the MPC a captain has defenseof necessity to jettisoning cargo to save his ship from aterrorist who threatens otherwise to sink it, provided

Anglo-American Jurisprudence, 6 J. Transnatl L. & Poly 51, 66-68 (1996). The

English defense of duress (as opposed to duress of circumstances) is thus

defined by reference to manmade threats.

26. References to shipwrecked sailors and floating planks go back at least as

far as Hecaton. For the venerable lineage of the case, see Claire Finkelstein, Two

Men and a Plank, 7 Legal Theory 279-82 (2001). For further discussion of Two

Sailors and a Plank, see infra text accompanying notes 75-76.

27. See Model Penal Code 3.02, cmt. at 9, 16 (Official Draft and RevisedComments 1980).


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that the captain would also have a defense of necessity to jettisoning cargo to save his ship from a natural stormthat threatened otherwise to sink it.

In either event, however, regardless of whether defenses ofnecessity are confined to two-party relationships or merelyinclude two-party relationships, they differ fromconventional duress which always consists of three-partyrelationships.

2. Purposefully Coercive Threats

A second feature, which distinguishes conventionaldefenses of duress from necessity and self-defense, is thenature of the underlying threat. Duress, necessity, andself-defense all arise in the context of threats to bystanders,because they all arise when a bystander is forced to choosebetween suffering harm or inflicting harm. However, whatdistinguishes conventional defenses of duress from theother two defenses is that duress is defined as eitherconsisting of or including threats that are purposefullycoercive, i.e., threats the explicit purpose of which is toinduce bystanders to commit the very invasions to whichthey resort. As one court puts it, One of the essentialfeatures of the defense of duress is the sense of immediate,imminent death or serious bodily injury if the actor doesnot commit the act as instructed.28

This second feature is significant because purposefullycoercive threats do more than bring pressure to bear uponbystanders. They also dictate to bystanders what theiraggressors exact as exclusive avenues of escape. As aconsequence, the aggressions that coerced bystandersinflict upon victims are not responses that they improviseon their own to protect themselves from threatened harm.Nor are they responses that would necessarily occur to

28. State v. Grinnell, 678 N.E.2d 231, 245 (Ohio 1996), appeal denied 673

N.E.2d 138 (Ohio 1996) (emphasis added). See also Robinson, supra note 11,

177(e)(5) at text accompanying n.33 (Many statutes, cases, and authorities

restrict the availability of the duress excuse to conduct that the coercer demandsthe defendant to perform.).


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them without prompting. Rather, they are responses thatcoercive aggressors themselves devise and forcibly imposeupon coerced bystanders as ostensibly the coerced

bystanders sole avenues of escape.Neither self-defense nor necessity is defined by

reference to purposefully coercive threats. Indeed, thethreats that underlie self-defense are the very converse ofbeing purposefully coercive. Consider a woman who useslethal force to protect herself from rape. While thewomans right to use lethal force may be a function of herassailants threat, the assailants purpose in subjecting herto the threat of rape is not to induce her to kill him. Theassailant does not say to the woman, I want you to kill me,and unless you do, I will rape you. Nor does the assailantdevise and propose to the woman the response she adopts.Rather, faced with a threat which is designed to render herpassive, the woman invokes her sense of self to improviseand execute a response on her own devising. To be sure,we can imagine cases in which a desperate assailantcommits so-called suicide by policeman, by explicitlyundertaking to kill a policeman unless the policeman killshim first. Significantly, however, the right of a policemanto defend himself in such cases does not in any way dependupon his assailants having purposefully coerced thepoliceman to shoot. The policemans right to defendhimself is entirely a function of his assailants having

threatened to kill him, regardless of the assailants purposein threatening to kill him.Necessity, like self-defense, is defined without

reference to purposefully coercive threats. As we haveseen, jurisdictions define necessity in two contrasting ways:some define necessity by reference to natural threats alone;others define it by reference to threats of any kind, whethernatural or manmade. The former jurisdictions do notdefine necessity by reference to purposefully coercivethreats, because natural threats are entirely lacking inpurpose. Nor do the latter jurisdictions define necessity byreference to purposefully coercive threats. Instead, they

define necessity by reference to threats that bystander B


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can evade only by committing an invasion of victim Vsinterests that is a lesser evil as measured by the standardthat governs the relationship between natural threats and

invasions ofVs interests.In contrast, duress is defined as either consisting of or

including purposefully coercive threats, depending uponhow jurisdictions define duress in relation to necessity.Definitions of duress in relation to necessity come in threemodels, the first two models of which differ in form but notin substance:

Model 1. Model-1 jurisdictions start by defining thedefense of necessity broadly to include both (i) choices oflesser evils in response to natural threats and (ii)choices of comparable evils in response to manmadethreats. Having defined necessity broadly, these

jurisdictions then define the defense of duress solely byreference to what is unique about duress, viz., thepresence of unlawful and purposefully coercive threats.That is, they define duress as a defense that a bystander

B possesses to invading certain interests on the part ofbystander-victim, V, where B is induced to do so by anaggressor As threat to the effect that unless B does asinstructed,A will harmB in certain ways.29Model 2. Model-2 jurisdictions achieve the same resultsbut in a different form. Rather than defining necessitybroadly and duress narrowly, Model-2 jurisdictions do

the converse: they define necessity narrowly and duress

29. The state of Illinois, for example, provides a general defense of necessity to

anyone who chooses the lesser of two evils under the circumstances, regardless of

whether the greater evil is manmade or natural in origin. See 720 Ill. Comp.

Stat. 5/7-13 (2001) (Conduct which would otherwise be an offense is justifiable by

reason of necessity if the accused was without blame in occasioning or developing

the situation and reasonably believed such conduct was necessary to avoid a

public or private injury greater than the injury which might reasonably result

from his own conduct). While doing so, Illinois confines the defense of duress to

manmade threats that are purposefully coercive. See People v. Davis, 306 N.E.2d

897, 898 (Ill. App. Ct. 1974) (rejecting the defendants plea of duress to an escape

from prison in response to intolerable prison conditions, on the ground that the

[t]he [duress] statute makes it clear that defendant must believe violence will be

inflicted upon him if he does not perform the particular conduct which constitutesthe crime . . . .).


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broadly. They start by confining the defense of necessitysolely to choices of lesser evils in response to naturalthreats.30 Having thus defined necessity narrowly, they

then define the defense of duress to encompass manmadethreats generally, thereby using duress to encompasstwo kinds of threats: (i) purposefully coercive threatsthatA brings againstB for the purpose of inducing B toinvade Vs interests in certain specified ways; and (ii)non-coercive but nonetheless manmade threats of a kindthat would constitute necessity under Model 1, that is,threats that A brings against B not for the purpose ofinducingB to invade Vs interests but, nonetheless, withthe effect of causing B to improvise an escape from thethreat by committing an invasion of Vs interests thatwould be justified as a lesser evil ifAs threat werenatural rather than manmade.31

30. See, e.g., Wis. Stat. Ann. 939.47 (2001) (confining the defense of

necessity to [p]ressure of natural physical forces); Cleveland v. Municipality of

Anchorage, 631 P.2d 1073 (Alaska 1981) (necessity not available to anti- abortion

demonstrators because of natural forces requirement); People v. Cater, 398

N.E.2d 28 (Ill. App. Ct. 1979), appeal dismissed, 449 U.S. 802 (1980) (in necessity

defense, coercive power has traditionally arisen from forces of nature).

31. Model 2 appears to describe the English defense of duress. Thus, the

English define necessity as a defense confined to choices between natural threats,

on the one hand, and lesser evils, on the other. See Regina v. Howe, [1987] 1

A.C. 417 (H.L.) (Lord Simon) (So necessity came to be used . . . to denote a

situation where circumstances face a person, not with no choice at all, but with

the choice between two evils; so that he could hardly be blamed if he chose thelesser); see also id. (Lord Hailsham) ([The] obvious distinction between duress

and necessity as potential defences [is that] duress arises from the wrongful

threats or violence of another human being and necessity arises from any other

objective dangers threatening the accused.). Accordingly, the English courts

define the common law defense of duress to encompass two kinds of unlawful

manmade threats: (1) any unlawful manmade threat that induces an actor to

choose what would be a lesser evil if the threat were natural in origin, see id.

(Lord Hailsham) ([T]he concession to human frailty [in connection with the

defense of duress] is no more than to say that in such circumstances a reasonable

man of average courage is entitled to embrace as a matter of choice the

alternative which a reasonable man could regard as the lesser of two evils.); and

(2) purposefully coercive threats of death or grievous bodily injury that compel an

actor to perform the ordered act. See Director of Public Prosecutions v. Lynch,

[1975] A.C. 653, 686 (Lord Simon) (threats . . . of death or grievous bodily

harm . . . if a certain act is not done, as overbears the actors wish not to performthe act, and is effective, at the time of the act, in constraining him to perform it).


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Model 3. The text of the MPC appears to place itsquarely within Model 1. For like jurisdictions thatadhere to Model 1, MPC section 3.01 states that an actor

has a defense of necessity to inflicting a lesser evil if hebelieves he must to do so to avoid a greater evil,regardless of whether the greater evil is manmade ornatural in origin.32 And like jurisdictions that adhere toModel 1, MPC section 2.09 states that an actor has afurther defense of duress only if he engaged in theconduct charged to constitute an offense because he was

coerced to do so by [a threat of unlawful force].33 Admittedly, the phrase coerced to do so is notequivalent to the phrase purposefully coerced to do so.

Yet it stretches ordinary language (as MPC section2.09 commentary puts it)34 to construe coerce toencompass anything other than purposefully coercivethreats. Nevertheless, the commentary to MPC section2.09 makes it clear that, in contrast to Model 1, MPCsection 2.09 does not confine duress to threats that arepurposefully coercive in nature. The commentary takesthe position that a prison inmate who escapes prison toavoid being a victim of a rape that he cannot otherwiseprevent is someone who is coerced to escape forpurposes of MPC section 2.09, despite the fact that therapist hardly threatens the inmate with rape for thepurpose of inducing the inmate to escape. At the very

least, therefore, the MPC is a third model of duressaModel 3that constitutes a mixture of Models 1 & 2.Thus, on the one hand, the MPC follows Model 1 in

32. See Model Penal Code 2.09, cmt. at 373 (Official Draft and Revised

Comments 1980).

33. Model Penal Code 2.09 (Proposed Official Draft, 1962). See Model Penal

Code 2.09, cmt. at 373-75 (Official Draft and Revised Comments 1980). A

majority of jurisdictions have adopted the MPC provision on duress, although

about half of them make an exception in cases of homicide by refusing to

recognize duress as a defense to murder. See 1 LaFave & Scott, supra note 11,

5.3(b) and text accompanying nn.46-48; Robinson, supra note 11, 177(g)(1) at

368 n.158.

34. See Model Penal Code 2.09, cmt. at 377 (Official Draft and RevisedComments 1980).


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defining necessity to include choices of lesser evils inresponse either to natural threats or to manmade threatsthat would be justified if the threats were natural in

origin. Yet on the other hand, the MPC follows Model 2in defining duress by reference to manmade threatsgenerally, thereby using duress to encompass threatsthat are purposefully coercive as well as threats that arenot.

What the commentary does not resolve is whetherMPC section 2.09 has the same substantive effect asModels 1 & 2 or whether it moves beyond them. Models1 & 2 define duress in relation to necessity in ways that,though they differ formally, nevertheless possess thesame substantive effect: they both provide a defense to abystanderB who invades a bystander Vs interests as aresult of manmade threats of two kinds: (#1)purposefully coercive threats that an aggressorA bringsagainst B for the purpose of inducing B to invade Vsinterests in certain ways; and (#2) non-coercive threatsthatA brings againstB that have the effect of causingBto improvise an escape by committing an invasion of Vsinterests that would be justified as a lesser evil ifAsthreat were natural rather than manmade. Whatremains unclear is whether the Model 3 of which MPCsection 2.09 consists mimics Models 1 & 2 by definingduress in relation to necessity in a way that, although

formally distinctive, nonetheless produces the samesubstantive effect as Models 1 & 2, or whether the Modelof which MPC section 2.09 consists defines duress morebroadly than Models 1 & 2. Specifically, the question iswhether, in addition to providing a defense to abystanderB who invades a bystander Vs interests as aresult of manmade threats #1 and #2, MPC section 2.09also providesB with a defense to invading Vs interestsas a result of a third kind of manmade threatnamely,(#3) non-coercive threats that A brings against B thathave the effect of causing B to improvise an escape bycommitting an invasion ofVs interests that would not be

justified as a lesser evil ifAs threat were natural rather


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than manmade. The commentary to MPC section 2.09does not answer that question, because while thecommentary argues in favor of a defense for a prison

inmate who responds to a non-coercive threat of rape byescaping prison, it does not make clear whether theescape would be justified as a lesser evil if the rapiststhreat were natural rather than manmade.35 Indeed, itis no accident that the commentarys reference to prisonrape does not clarify whether a prison escape would be

justified as a lesser evil if the rapists threat werenatural rather than manmade, because threats of rape,being inherently manmade, are hard to imagine innatural form. MPC section 2.09 thus remains ambiguousas to whether it provides a defense to threats of type #3.We shall proceed for the time being on the assumptionthat MPC section 2.09 does not provide a defense tothreats of type #3, though in Part III we shall considerthe possibility that it does.

In any event, regardless of whether they are definedalone the lines of Models 1, 2, or 3, defenses of duress areexplicitly defined either to consist of purposefully coercivethreats or to include purposefully coercive threats. For byinstructing juries in the language of coercion andthreats, jurisdictions allow juries to take into account thefact that defendants have not only been forced to confronthard choices but have been purposefully and unlawfully

coerced to commit the acts they did.

3. A Defense Lesser than Self-Defense, yet Greaterthan Necessity

A third feature that distinguishes defenses of duressfrom defenses of necessity and self-defense is that,

35. A number of courts take the position that, while threats of rape suffice to

give prison inmates a defense to the crime of escape, the defense is predicated on

the fact that escape is the lesser of two evils under the circumstances. See People

v. Lovercamp, 118 Cal. Rptr. 110, 115 (Cal. Ct. App. 1974); People v. Unger, 362

N.E.2d 319 (Ill. 1977); State v. Reese, 272 N.W.2d 863 (Iowa 1978); State v.Baker, 598 S.W.2d 540 (Mo. Ct. App. 1980).


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everything else being equal, laws of duress provide actorswith more protection than laws of necessity and lessprotection than laws of self-defense.

To say that one defense provides more or lessprotection than other defenses, however, presupposes acommon standard or metric by which they can all bemeasured. The metric we shall use for this purpose is whatwe call an Aggregate Bystander standard, an artificialconstruct that is designed to measure what othercommentators refer to as overall social welfare36 but thatseeks to avoid the ambiguities inherent in speaking ofutilitarianism37:

The Aggregate Bystander StandardThe magnitude of the protections that defenses provideis a function of the magnitude of the harms that thedefenses permit actors to inflict upon others to protectthemselves or others from a given harm. The magnitudeof the latter harms, in turn, is a function of the rankorder, from the most undesirable to the leastundesirable, in which an Aggregate Bystander wouldrank alternative harms if he had to choose which one tosuffer. An Aggregate Bystander is a bystander whopossesses not only a physical body that is capable ofexperiencing suffering, but a species ofbody politic thatcan experience the aggregate suffering of everyone in the

community. Thus, because an Aggregate Bystanderwould regard losing two of his lives as even less desirablethan losing one, a defense that permits an actor to killtwo persons in order to protect himself or another personprovides greater protection than a defense that permitshim to do nothing more under the circumstances thankill a single person. And because an Aggregate

36. See John Parry, The Virtue of Necessity: Reshaping Culpability and the

Rule of Law, 36 Hous. L. Rev. 397, 404 (1999).

37. For ambiguities in the metric by which consequentialism is measured,

see Parry, supra note 36, at 418 (describing ways in which consequentialists

might enrich thin consequentialism); Michael Moore, Torture and the Balance ofEvils, 23 Isr. L. Rev. 280, 290-98 (1989).


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Bystander would regard losing a life as even lessdesirable than being grievously injured, a defense thatpermits an actor to kill in order to protect himself

provides greater protection than a defense that permitshim to do nothing more under the circumstances than

grievously injure. By the same token, because anAggregate Bystander regards being physically injured aseven less desirable than being deprived of moneythrough theft, a defense that permits an actor to donothing more than steal anothers money provides lessprotection than a defense that permits him under suchcircumstances to injure another physically.

By reference to the aforementioned metric, defenses ofduress provide actors with considerably less protectionthan laws of self-defense. Consider for a moment what thelaws of self-defense permit an actor B to do to a non-

privileged aggressorA to prevent him from harming her.Under Anglo-American regimes of self-defense, actors arepermitted to inflict harms upon non-privileged aggressorsthat exceed the alternative harms the actors will otherwisesuffer if they do nothing to protect themselves. Thus, every

Anglo-American jurisdiction permits an actor to kill manynon-privileged aggressors to prevent the aggressors fromkilling him; every jurisdiction permits an actor to kill anon-privileged aggressor to prevent the aggressor from

grievously injuring him; and every jurisdiction permits anactor to moderately injure a non-privileged aggressor toprevent the aggressor from stealing from him or another.38In contrast, now consider the limited things that laws ofduress permit a coerced actorB to do to a bystander-victimV to evade an unlawful harm from A. No jurisdictionallowsB to evade an unlawful harm fromA by inflicting far

greater harms on V. Thus, no jurisdiction allows an actorto kill many innocent victims in order to protect himselffrom an aggressors coercive order to kill them all or be

38. See generally Alexander, supra note 12, at 1479; Sanford H. Kadish,

Respect for Life and Regard for Rights in the Criminal Law, 64 Cal. L. Rev. 871,882 (1976) [hereinafter Respect for Life].


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killed himself;39 no jurisdiction allows an actor to kill abystander-victim to protect himself from an aggressorscoercive order to do so or be beaten;40 and no jurisdiction

39. See Olivia Swaak-Goldman, War Crimes and Crimes against Humanity,

92 Am. J. Intl L 282 (1998), commenting on Prosecutor v. Erdemovic, No. IT-96-

22-A (United Nations War Crimes Tribunal for the Former Yugoslavia, Oct. 7,

1997). See also Abbott v The Queen, [1976] 3 All E.R. 140 (Lord Salmon):

In the trials of those responsible for wartime atrocities such as mass

killings of men, women or children, inhuman experiments on human

beings, often resulting in death, and like crimes, it was invariably argued

for the defence that these atrocities should be excused on the ground that

they resulted from superior orders and duress: if the accused had refused to

do these dreadful things, they would have been shot and therefore they

should be acquitted and allowed to go free. This argument has always been

universally rejected.

Just as the reasonableness of extreme emotional disturbance is exclusively a

question for triers of fact under Model Penal Code section 210.3(1)(b), some

commentators take the view that reasonableness firmness is also exclusively a

question for triers of fact under Model Penal Code section 2.09, thereby

precluding courts from ruling as a matter of law that threats of unlawful force

against a person cannot cause a person of reasonable firmness to commit war

crimes or crimes against humanity. See Dressler, Exegesis of the Law of Duress:

Justifying the Excuse and Searching for Its Proper Limits, 62 S. Cal. L. Rev.

1331, 1345 (1989) [hereinafter Exegesis of Duress]. We read the Model Penal

Code commentary differently. In contrast to the commentary to Model Penal

Code section 210.3(1)(b), which explicitly states that the reasonableness of

extreme emotional disturbance is exclusively an issue for the trier of fact (see

Model Penal Code 2.10.3, cmt. at 61 (Official Draft and Revised Comments

1980)), the commentary to Model Penal Code section 2.09 says no such thing.

Instead, the commentary states that factors that bear upon reasonable firmness

must be weighed, presumably by courts as well as by jurors. See Model Penal

Code 2.09, cmt. at 376 (Official Draft and Revised Comments 1980).Interestingly, having said that the jury is the final judge of reasonable firmness,

Dressler also goes on to say that when D kills 100 innocent persons to save his

own life, [w]e may have a right to expect sacrifice rather than single-minded,

self-interested action, because common sense . . . does suggest that courage is

appropriate, and that we can fairly expect a person to take some suicidal routes

(id. at 1336 n.194), implying at least that a judge would be justified in

withholding a jury instruction on duress in such a case. Cf. Regina v. Abdul-

Hussain, [1999] Crim. L.R. 570 (Ct. App.) (before a judge instructs a jury on

duress, he must decide as a matter of law whether the offense that an unlawfully

threatened person commits in order to escape a threatened harm is

disproportional to the gravity of the threatened harm).

40. Most Anglo-American jurisdictions do not allow duress as a defense to

murder. See Reed, The Need for a New Anglo-American Approach to Duress,

supra note 11. But when they do, they allow it when the actor will himself

otherwise be murdered. See Dressler, Understanding Criminal Law, supra note21, at 281. We have found no jurisdiction that allows duress as a defense to


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allows an actor to physically assault a bystander-victim toprotect himself from an aggressors coercive order to do soor suffer a loss of property.41

At the same time, laws of duress ordinarily provideactors with more protection than laws of necessity.42 Thisis true under both of the two prevailing standards fordefining duress: (a) generic standards, such as Model PenalCode section 2.09 that permits a person to inflict any harmupon another when coerced to do so by any threat ofunlawful force that a person of reasonable firmness in hissituation would be unable to resist,43 and (b) common lawstandards, which define duress by specifying the kinds ofharms that a person is permitted to inflict upon anotherand enumerating the kinds of unlawful aggression withwhich he must be threatened.

murder when the actor is threatened with an offense less than murder.

41. The defense of duress is traditionally limited, and is limited under the

Model Penal Code, to actors who are threatened with death or physical injury.

See Model Penal Code 2.09, cmt. at 369, 375 (Official Draft and Revised

Comments 1980).

42. See Herbert Fingarette, Victimization: A Legalist Analysis of Coercion,

Deception, Undue Influence, and Excusable Prison Escape, 42 Wash. & Lee L.

Rev. 65, 84-85 n.54 (1985) ([I]n the eyes of the law there has consistently been

something systematically significant, and more forceful, about a plea of [notguilty] for a criminal act motivated by a danger to the actor that was designedly

created for that very purpose by a wrongful human threat . . . as contrasted with

a defense based merely on the actor having faced a choice-of-evils dilemma.).

43. For other generic standards, see Regina v. Howe, [1987] 1 A.C. 417, [1987]

(H.L.) (Lord Harwich, quoting Lord Simon in Director of Public Prosecutions v.

Lynch, [1975] A.C. 653 at 686) (such . . . fear, produced by threats, of death or

grievous bodily harm [or unjustified imprisonment] if a certain act is not done, as

overbears the actors wish not to perform the act, and is effective, at the time of

the act, in constraining him to perform it); English Law Commission proposal of

1977, as quoted in Regina v. Howe, [1987] 1 A.C. 417 (H.L.) (Lord Harwich):

A person shall be regarded for the purposes of this section as having taken

any action under duress if he was induced to take it by any threat of harm

to himself or another and at the time when he took it he believed (whether

or not on reasonable grounds)(a) that the harm threatened was death or

serious personal injury (physical or mental) . . . [and] he could notreasonably have been expected to resist the threat.


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a. The Model Penal Code

A majority of jurisdictions have adopted the MPC

provision on duress, although about half of them decline tomake duress a defense to murder.44 Section 2.09 isdistinctive because rather than explicitly requiringproportionality between the aggression with which aperson is unlawfully threatened and the harm he inflicts,section 2.09 at most implicitly requires proportionality bystating that an actor may inflict any harm upon anotherwhen coerced to do so by any threat of unlawful force thata person of reasonable firmness in his situation would beunable to resist. In turn, the commentary to the MPCmakes clear that the defense of duress (section 2.09)permits an actor to inflict greater harms on bystander-

victims to evade purposefully coercive threats than thedefense of necessity (section 3.02) permits him to inflict toevade otherwise identical natural threats. Thecommentary makes the point by means of the followingillustration, adopted from a well-known casebook:

X is unwillingly driving a car along a narrow and

precipitous mountain road, falling off sharply on both sides,

under the command of Y, an armed escaping felon. The

headlights pick out two persons, apparently and actually

drunk, lying across the road in such a position as to make

passage impossible without running them over. X is

prevented from stopping by the threat of Y to shoot himdead if he declines to drive straight on. IfXdoes go on and

kills the drunks in order to save himself, he will [have a

defense] under 2.09 if the jury should find that a person

of reasonable firmness in his situation would have been

unable to resist, although he would not be justified under

the lesser evil principle of 3.02.45

44. See 1 LaFave & Scott, supra note 6, 5.3(b) and text accompanying nn.46-

48; Robinson, supra note 11, 177(g)(1) at 368 n.58; Dressler, Exegesis of Duress,

supra note 39, 1347 & n.106.

45. Model Penal Code 2.09, cmt. at 378 (Official Draft and RevisedComments 1980) (quoting from Sanford Kadish & Monrad Paulson, Criminal Law


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It is unfortunate, perhaps, that this illustration isbased on upon a crime of homicide, because some

jurisdictions that have otherwise adopted the MPC section

2.09 have refrained from applying it to crimes of homicide.46Nevertheless, the illustration is significant because itconfirms the Model Penal Codes position that when actorsare confronted with otherwise equal harms, one of which isunlawful and purposefully coercive in nature and the otherof which is natural in origin, duress provides greaterprotection than necessity, by permitting actors to inflictharms in order to evade unlawful and purposefully coercivethreats that necessity does not permit them to inflict inorder to evade natural threats.

b. Common Law Standards

In contrast, other jurisdictions codify common lawpractices by explicitly requiring proportionality betweenthe non-privileged aggression with which a person isunlawfully threatened and the harm he inflicts. They do soby specifying the harms that an actor may inflict inrelation to the specific kinds of non-privileged aggressionwith which he in turn must be threatened.47 Thesecommon law standards tend to vary from jurisdiction to

jurisdiction, depending upon the gravity of the harms thatthey permit actors to inflict in relation to the non-

privileged aggression with which they in turn must bethreatened. Thus, California states that duress is adefense to crimes other than capital offenses, provided thatthe actor is unlawfully threatened with death;48 Georgiastates that duress is a defense to crimes other thanmurder, provided that the actor is unlawfully threatenedwith death or grievous bodily injury;49 Iowa states duress isa defense to crimes other than physical injury, provided

and Its Processes 570-71 (3d ed. 1975)).

46. See supra note 44.

47. See Dressler, Exegesis of Duress, supra note 39, at 1345-46.

48. See Cal. Penal Code 26 (2001).49. See Ga. Code Ann. 16-3-26 (2001).


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that the actor is unlawfully threatened with seriousinjury;50 North Dakota states that duress is a defense tomisdemeanors, provided that the actor is unlawfully

threatened with force.51 Despite their differences, however,common law standards all make explicit that an actor has adefense of duress only if, as measured by AggregateBystander standards, the non-privileged aggression withwhich he is threatened is greater than, or at least equal to,the harm that he in turn inflicts on bystander-victims.

Now it might be thought that while generic standardsof duress like MPC section 2.09 do, indeed, provide actorswith broader defenses than necessity, common lawstandards do not. Indeed, that appears to be what WayneLaFave and Austin Scott conclude in their treatise onsubstantive criminal law. They argue that common lawstandards of duress consist of the same lesser-of-two-evil

judgments that constitute defenses of necessity in responseto natural threats.52 But that is not so. For one thing, ifcommon law standards of duress were designed to donothing more than provide defendants with the same kindof protection against manmade threats that necessityprovides against natural threats, duress statutes wouldtake the same form as necessity statutes. That is, theywould state that an actor has a defense to conduct that isotherwise criminal if his conduct is an alternative to anunlawful threat of an even greater evil.53 But common

law standards are not stated in the language of greaterand lesser evils. Rather, they are stated as relationshipsbetween specific threats and specific harms, some of whichare identical to one another. Thus, the Kansas duressstatute provides that duress is a defense to the crime of

50. See Iowa Code 704.10 (2002).

51. See N.D. Cent. Code 12.1-05-10 (2002).

52. See supra note 25.

53. See Finkelstein, supra note 4, at 259-60 (If the defense of duress were,

indeed, a mere counterpart to the defense of necessity, one would expect the twodefenses to be combined under a general lesser evils defense.).


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inflicting great bodily injury, provided that the actor isunlawfully threatened with great bodily injury.54

Nevertheless, although LaFave and Scott are evidently

mistaken with respect to statutes like Kansass, they mightbe thought to be correct with respect to duress statutesthat provide actors with defenses to crimes only if they arethreatened with specified harms that are greater. Thus, itmight be thought that LaFave and Scott are correct withrespect to duress statutes like Minnesotas that providethat an actor who is himself threatened with death has adefense to crimes less than homicide.55 However, it is amistake to think that any duress statute confines actors tochoices of evils that, were the threats natural in origin,would constitute necessity. Thus, consider the Minnesotastatute in the context of the following hypothetical case:

Coerced TransplantDr. B, a Minnesota physician in a private clinic, has apatient with kidney failure whom he predicts will diewithin hours for lack of a kidney transplant. The dyingpatients brother,A, being desperate to save his brother,kidnaps Dr.Bs wife and threatens to kill her unless Dr.

B sedates a patient who has two healthy kidneys, V, andremoves one for purposes of transplant. Dr. B, rightlybelievingA will otherwise kill his wife, does as A ordersby sedating V, removing one of his kidneys, and using it

to save his dying patients life. Accordingly, Dr. B isprosecuted for kidnapping V and causing him greatbodily harm. He defends on grounds of duress underMinnesota law.

54. See Kan. Stat. Ann. 21-3209 (2001).

55. See Minn. Stat. 609.08 (2001):

Except as provided in section 609.20, clause (3) [regarding homicide under

threat of death], when any crime is committed or participated in by two or

more persons, any one of whom participates only under compulsion by

another engaged therein, who by threats creates a reasonable

apprehension in the mind of such participator that in case of refusal that

participator is liable to instant death, such threats and apprehension

constitute duress which will excuse such participator from criminalliability.


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Dr. B qualifies for a jury instruction on duress underMinnesota law, because he responded to an unlawful threatof death by committing a crime less than homicide. Yet it

is inconceivable that Dr.B would qualify for an instructionon necessity if he had harvested the victims kidney not inresponse to As unlawful death threat, but simply to savehis dying patients life. For courts rarely acquitdefendants on grounds of necessity, even where the balanceof evils is ostensibly in their favor.56

II. PREVAILINGACCOUNTS OF THE DEFENSE OF DURESS

Scholars disagree as to how broadly the defense ofduress ought to be framed. Conservatives wish to confinethe defense to an actors response to unlawful manmadethreats that, were the threats natural in origin, would

justify the response on grounds of necessity.57 Liberals inturn wish to expand the defense to encompass responses tosituational duress, that is, to natural threats that personsof reasonable firmness would be unable to resist.58

56. See George P. Fletcher, The Individualization of Excusing Conditions, 47

S. Cal. L. Rev. 1269, 1285-87 (1974) (courts rarely acquit on grounds of

necessity, even where the balances of evils are ostensibly in the defendants

favor); Robert Hallborg, Comparing Harms: The Lesser-Evil Defense and the

Trolley Problem, 3 Legal Theory 291, 303 (1997) (it must be surely the case that

the lesser-evil defense should rarely be available to a criminal-law defendant);

Parry, supra note 36, at 399-400 (courts usually reject claims of necessity, evenin cases in which, ostensibly, the balances of evils are disproportionately in favor

of defendants). Cf. Re Y (Mental Patient: Bone Marrow Donation), [1997] Fam.

110, in which an English court ruled that necessity does not permit a coerced

transplant of bone marrow from a retarded girl to her dying sister, unless the

retarded girl consents to the transplant, even if only hypothetically.

57. See authorities cited in supra note 6.

58. For commentators who favor defenses of situational duress, see Alexander,

supra note 12, at 1490; Dressler, Exegesis of Duress, supra note 39, at 1376;

Finkelstein, supra note 4, at 260; Kent Greenawalt, Justifications, Excuses, and a

Model Penal Code for Democratic Societies, Crim. Just. Ethics, Winter/Spring

1998, at 14, 17; Sanford Kadish & Stephen Schulhofer, Criminal Law and Its

Processes at 853-55 (7th ed. 2001); John Kaplan, Robert Weisberg, & Guyora

Binder, Criminal Law at 685 (4th ed. 2000); Peter Low, John Jeffries, & Richard

Bonnie, Criminal Law at 622-23 (2d ed. 1986); Robinson, supra note 11,

177(e)(1) at text accompanying n.17. For a jurisdictions that has adopted adefense of situational duress, see Perka v. Queen, [1984] 2 S.C.R. 232 (Can.).


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Nevertheless, despite their normative differences,conservatives and liberals tend to concur in one respect:they agree as to how they classify conventional defenses of

duress as between defenses of justification and defensesof excuse. They agree that to the extent thatconventional defenses of duress are confined to commonlaw statutes like Minnesotas, they are instances of

justification,59 while to the extent that conventionaldefenses of duress follow the broader scope of MPC section2.09, they are not instances of justificationeither becausethey are excuses60 or because they fall within a third classof defenses that are neither justifications nor excuses.61

59. See, e.g., 1 LaFave & Scott, supra note 6, 177 at text accompanying nn.1-

7 (a conservative commentator); Greenawalt, supra note 58, at 16 (a liberalcommentator); Dressler, Exegesis of Duress, supra note 39, at 1350-51 (a liberal

commentator).

60. For a conservative who argues that in so far as defenses of duress provide

further protection than the common law, they must be conceptualized as excuses

(albeit excuses he disavows), see Lord Hailsham in Regina v. Howe, [1987] 1 A.C.

417:

The justification for allowing a defence of duress to a charge of murder is

that a defendant should be excused who killed as the only way of

avoiding death himself or preventing the death of some close relation

such as his own well-loved child. This essentially was the dilemma which

Dudley and Stephens faced and in denying their defence the court

refused to allow this consideration to be used in a defence to murder. If

that refusal was right in the case of Dudley and Stephens it cannot be

wrong in the present appeals. . . .

To change the law in the manner suggested by counsel for the appellants inthe present case would, in my opinion, introduce uncertainty over a field of

considerable importance.

For commentators who argue that defenses of duress like MPC section 2.09 must

be conceptualized as defenses of excuse, see Alexander, supra note 12, at 1487;

Peter Arenella, Character, Choice, and Moral Agency: The Relevance of Character

to Our Moral Culpability Judgments, 7 Soc. Phil. & Poly 59, 77-83 (1990); Alan

Brudner, A Theory of Necessity, 7 Oxford J. Legal Stud. 339, 358 (1987); Gorr,

supra note 1, at 7; Anne Coughlin, Excusing Women, 82 Cal. L. Rev. 1, 15 (1994);

Antony Duff, Choice, Character, and Criminal Liability, 12 Law & Phil. 345, 350-

51, 356 (1993); Dressler, Exegesis of Duress, supra note 39, at 1385; Finkelstein,

supra note 4, at 251; Fletcher, supra note 15, at 830 (duress is a paradigmatic

example of an excuse); John Gardner, The Gist of Excuses, 1 Buff. Crim. L. Rev.

575, 597 (1998); John Hill, supra note 1, at 315-30; Jeremy Horder, Self-Defence,

Necessity and Duress: Understanding the Relationship, 11 Can. J.L. & Juris. 143,

163 (1998); Sanford Kadish, Excusing Crime, 75 Cal. L. Rev. 257, 261 (1987)[hereinafter Excusing Crime]; John Kaplan et al., supra note 58, at 663; Low et


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We believe that this near-universal position ismistaken. We shall argue in Part III that properlyclassified, all conventional defenses of duressincluding

common law statutes such as Minnesotas as well as MPCsection 2.09are entirely justifications. In the meantime,we shall proceed in this Part by, (A) describing anddistinguishing between justification and excuse, (B)examining the reasons that commentators give forbelieving that statutes like Minnesotas are instances of

justification, and (C) examining the reasons thatcommentators give for concluding that statutes like MPCsection 2.09 are instances of excuse.

A. Justification and Excuse

Justification and excuse are categories of defensesthat derive their content from the functions of the criminallaw. Defenses of justification are derivative of criminallaws function in regulating conduct only of a certain kind,namely, conduct that the state seeks to discourage anddeter from occurring. An actor has a defense of

justification if, though he engages in conduct that the stateordinarily wishes to deterthat is, he commits the actusreus of what otherwise constitutes an offensehe does soin the context of a choice of evils that are such that thestate ceases to wish to deter the conduct under the

circumstances. Defenses of excuse, in turn, are derivativeof the criminal laws function in regulating conduct only in

al., supra note 58, at 622-23; Michael Moore, Placing Blame 492, 555-57 (1997);

Stephen J. Morse, Culpability and Control, 142 U. Pa. L. Rev. 1587, 1594 (1994);

Reed, Duress and Provocation As Excuses to Murder, supra note 25, at 51;

Robinson, supra note 11, 177(a) at n.1; Stanley Yeo, Compulsion in the Criminal

Law 35-45 (1990).

61. For commentators who take the position that conventional defenses of

duress like Model Penal Code section 2.09 are neither justifications nor excuses,

see Laurie Kratky Dore, Downward Adjustment and the Slippery Slope: The Use

of Duress in Defense of Battered Offenders, 56 Ohio St. L.J. 665, 745-46 (1995);

Craig Carr, Duress and Criminal Responsibility, 10 Law & Phil. 161, 180 (1991);

Dan Kahan and Martha Nussbaum, Two Conceptions of Emotion in Criminal

Law, 96 Colum. L. Rev. 269, 333-34 (1996); Robert Schopp, Justification Defensesand Just Convictions, 24 Pac. L.J. 1233, 1308, 1310-11, 1321 (1993).


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a certain way, namely, by blaming and condemningpersons. An actor has a defense of excuse if, though heengages in conduct that the state seeks to deter, he does so

without possessing any of the motivations that judgmentsof blame presuppose.

Now it is often stated that justification is a defensethat goes to what an actor objectively does or omits doing,while excuse is a defense that goes to the subjectiveattitude or motivation with which he engages in conduct.62

Although there are important senses in which suchstatements are true, the statements are misleading in sofar as they suggest that an actors subjective relationship toharms has no bearing on whether his conduct is justified.Justification is, indeed, based upon what an actorobjectively does, but only in the following sense: an actorhas a defense of justification to conduct that is otherwisean offense if, as measured by the interest he actuallypossesses in what he is doing rather than by the interest hemay mistakenly believe he does or does not possess, hepossesses an interest in engaging in it such that thecriminal law in no way regrets what he does or wishes thathe have done otherwise.63 By the same token, excuse is,indeed, based upon an actors subjective attitude ormotivation, in the sense that an actor has a defense ofexcuse to conduct that is unjustified if he engages in theconduct without the attitudes of malevolence, callousness,

or heedlessness regarding the legitimate interests of othersthat the state represents actors to possess when it publiclyexpresses its resentment of them for engaging in such

62. See Michael D. Bayles, Reconceptualizing Necessity and Duress, 33

Wayne L. Rev. 1191, 1203 (1987) (Justifications focus on acts. . . . Excuses focus

on the actor.); Dressler, Understanding Criminal Law, supra note 21, 184-97.

Kent Greenawalt questions whether it is conceptually possible to draw distinct

lines between justification and excuse. Kent Greenawalt, The Perplexing Borders

of Justification and Excuse, 84 Colum. L. Rev. 1897 (1984). For an effective

rebuttal to Greenawalt, see Hurd, supra note 19.

63. Claire O. Finkelstein, Self-Defense as a Rational Excuse, 57 U. Pitt. L.

Rev. 621, 626 (1996) ([J]ustification is objective, in the sense that it applies to

cases in which no bad act has occurred. Where actual justification is present,nothing has happened that should attract the attention of the criminal law.).


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conduct. Thus, the difference between justification andexcuse is the difference is between the states declaring toan offender, You did nothing that the criminal law in any

way regards as regrettable under the circumstances(justification), and declaring, Even if you did somethingthat the criminal regrets, you did nothing for which youought to feel remorse (excuse).64 Nevertheless, as we shallsee, the defense of justification is not entirely objective, foran actors subjective relationship to harms can have abearing upon whether they are, indeed, the kinds of harmsthat the criminal law in no way regrets his bringing about.

Justification and excuse are both sufficient defenses tocriminal punishment, but they are not comprehensive. Anactor can engage in unjustified and unexcused conduct andyet still possess what Paul Robinson calls a non-exculpatory defense to being punished for it.65 Thus, aforeign diplomat who deliberately kills a rival without aclaim of insanity is neither justified nor excused. He hasno justification, because he has no legitimate and sufficientinterest in killing his rival. And he has no excuse, becausehe commits the homicide with precisely the kind ofmalevolence and callousness regarding the legitimateinterests of his victim that the state represents actors topossess when it publicly expresses its indignation for theircommitting murder. Nevertheless, he possesses a non-exculpatory defense of diplomatic immunity that is

independent of both justification and excuse.

1. Justification

Defenses of justification are analogous to the failure-of-proof defenses that arise when an actor fails to commit

64. For analysis of distinctions between regret and remorse, see Janet

Landman, Regret: The Persistence of the Possible (1993); Marcia Baron, Remorse

and Agent-Regret, 13 Midwest Stud. Phil. 259, 261 (1988) (explaining the

differences between regret and agent-regret); L. N. Zoch, Remorse and Regret: A

Reply to Phillips and Price, 46Analysis 54, 55-56 (1986).

65. See Paul Robinson, Structure and Function in the Criminal Law 15, 68-81(1997) [hereinafter Structure and Function].


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the actus reus of an offense. An actor who fails to committhe actus reus of an offense has a defense to that offensebecause, regardless of what else might be said about him,

he has not done anything that the statute at hand seeks todeter persons from doing. The reason the actor possessesthe defense is not that he is assumed to have actedheroically and not that he is assumed to have done theright thing under the circumstances. The reason hepossesses the defense is that he has not brought aboutwhat the state in the statute regards as the wrong thingto bring about under the circumstances. The same is trueof defenses of justification, except that defenses of

justification arise in contexts in which actors havecommitted the actus reus of an offense. An actor has adefense of justification if, though he has otherwisecommitted the actus reus of an offense, he has done so inthe context of a choice of evils that is such that the state nolonger regards what he did as a wrong thing to bringabout under the circumstances. In short, he has a defenseof justification in that he has a Hohfeldian privilege toengage in conduct.66

There are two reasons why the criminal law mayprivilege an actor to engage in conduct that wouldotherwise constitute an offense: either because the criminallaw actively favors his engaging in it under thecircumstances; or because it merely tolerates his engaging

it under the circumstances. The criminal law favors anactors conduct when it not only privileges the conduct butin any of three ways positively prefers the conduct to thealternatives that the actor himself confronts: (1) byrequiring the actor to engage in the conduct; (2) by givingthe actor a Hohfeldian right67 to engage in the conduct in

virtue of prohibiting his victim from resisting the conduct;or (3) by differentially permitting unrelated persons toassist the actor while simultaneously giving the actor a

66. See supra text and accompanying note 16.

67. For the distinction between a bystander having a Hohfeldian privilege to

engage in conduct and his having a Hohfeldian right to do so, see supra notes16-27.


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Hohfeldian right to engage in the conduct in virtue ofprohibiting unrelated persons from assisting his victim. Incontrast, the criminal law tolerates an actors conduct

when it privileges his conduct without favoring it.To illustrate the different respects in which the

criminal law can favor privileged conduct, as well as thedifference between favoring privileged conduct andtolerating it, consider the following cases:

Case 1: Assassin and a Policeman. An assassin isattempting to kill a statesman when a policeman comeson the scene. Having no other way of preventing theassassination, the policeman coolly shoots and kills theassassin. The policeman is charged with murder.

Ruling: the courts of the state acquit the policeman onthe ground that, having a civil duty under state law toprotect the statesman, the policeman not only had alegitimate interest in committing what would otherwisehave been a murder but was required to shoot theassassin, in that he would have been criminallyresponsible for dereliction of duty if he had failed to doso.68Case 2: Woman and a Rapist. A woman is beingseized by a man who is attempting to sexually assaulther. Having no other way of preventing the assault, sheseizes a penknife and starts stabbing. Fearing thecontinued stabbing but without abandoning his planned

assault, the assailant strikes and grievously injures thewoman until she drops the penknife. The woman andher assailant are both charged with grievous assault.

Ruling: the courts of the state acquit the woman on theground that she had a legitimate interest under thecircumstances to commit what would otherwise havebeen a grievous battery in order to protect herself frombeing sexually assaulted;69 while the assailant isconvicted on the ground that he had no legitimate

68. Cf. Model Penal Code 2.01(3)(b) (Proposed Official Draft 1962) (a person

may be held criminally responsible for failing to act where the duty to perform the

act is otherwise imposed by law.).69. Cf. Model Penal Code 3.04(b)

duress excuse

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