What crimes can be defended claiming duress?

Question

I understand most crimes can be defended by claiming duress. I know that excludes the murder of an innocent person, but what other crimes cannot be fully defended using duress? Also, if someone did commit a murder under dures swhat would they be charged with, would the charge and sentence maybe be reduced? I think a lot of people, maybe most, would not kill an innocent to save their own life, but possibly would if the life of a loved one was being threatened, so what would happen to some who commited a murder under those circumstances?

Answer 1

australia

Duress is a defence for all Commonwealth crimes

The common law restrictions on the use of duress as a defence have been abolished for all Commonwealth crimes.

Common law restrictions

In other jurisdictions, the defence is subject to the common law restrictions: it is not available for murder, attempted murder, or some forms of treason.¹ It can be argued for manslaughter and all other criminal offences.

¹Treason is normally prosecuted as a Federal crime (although very rarely) but it is on the books in New South Wales, South Australia, Victoria, and Tasmania.

Answer 2

germany Necessity can cover almost everything

According to the German criminal code, the closest to "duress" is "Notstand" in StGB §34 & §35, somewhat translatable as "Necessity" and it could be applied to any and all crimes. However, the definition what is a Notstand is very specific and often not applicable:

when faced with a present danger [...] which cannot otherwise be averted [...]

This language is the same in both sections, proclaiming that such necessity makes an act either lawful or not punishable. However, it is then cut down a little more in different ways between them:

§34: [...] the protected interest substantially outweighs the one interfered with. However, this only applies to the extent that the act committed is an adequate means to avert the danger.

§35: [...] This does not apply to the extent that the offender could be expected, under the circumstances, to accept the danger, in particular because said offender caused the danger or because of the existence of a special legal relationship;

The language here demands a check, if "Verhältnismäßigkeit" is kept. In its wording, it closely follows that of other sections, such as Notwehr StGB §23 (2), which demands "Erforderlichkeit" (also translateable as necessity or required to) but encompasses sub-branches that make something "erforderlich". As an effect, "Notstand" can only excuse the least forceful and least intrusive means to achieve the aversion of a present danger, and it can't excuse some dangers under §35 where the danger and its effects are expected to be accepted. So, anything where it isn't a killing, you can have it covered. Killing someone falls under Notwehr... or not, but see below.

A typical example of where you are expected to accept some dangers is driving on the road.

Killing someone is special

German law separates several tyes of killing. Killing someone without neglect or a situation of Notwehr, is differentiated between Mord and two degrees of Totschlag. These are best translated as murder under specific aggravating circumstances (§ 211), just murder (§ 212), and less serious case of murder (§ 213)

§211 (2) A murderer under this provision is someone who kills a person out of a lust to kill, to obtain sexual gratification, out of greed or otherwise base motives, perfidiously or cruelly or by means constituting a public danger or to facilitate or cover up another offence.

§212 (1) Whoever kills a person without being a murderer under the conditions of section 211 incurs a penalty of imprisonment for a term of at least five years.

§213 Whoever kills a person under the conditions of section 212 without any fault on their own part on account of being provoked to rage by ill-treatment of or serious insult to themselves or a relative by the person killed and being immediately carried away by that rage to commit the offence, or in the event of an otherwise less serious case, the penalty is imprisonment for a term of between one year and 10 years.

§32 (1) Whoever commits an act in self-defence does not act unlawfully.
(2) ‘Self-defence’ means any defensive action which is necessary to avert a present unlawful attack on oneself or another.

Killing someone to save another life can not satisfy §211, as the low motive is missing. However, unless you manage to trigger §23 (self defense) because there was a present unlawful attack and it was a defensive action (e.g. killing the agressor), then the killing falls under §212 (murder) or §213, the less serious case of murder. Killing someone can, under German interpretation, never fall under §34 and §35, and only §23 can absolve someone of unlawfully killing someone - and only then if you kill the aggressor of the unlawful attack, not some third party.

Answer 3

As discussed in this Wikipedia article duress does not cover the most serious of crimes but murder is the only crime that is listed as far as I saw is murder.

For duress to be used successfully, the defendant must prove that a reasonable person would conclude that 1.) a threat has been made against the life or physical wellbeing of the defendant or the defendant's immediate family, or someone immediately close to the defendant 2.) that the threat made was the direct causal link that led the defendant to break the law and 3.) that the threat created an immediate concern in the defendant for their own safety or the safety of others that could not be evaded by reasonable means.

The logic behind duress not being a defense to murder is that the nature of the defense holds that the threat of harm to someone else or yourself was serious enough to override abiding by the law. In the case of murder, the scenario follows out in one of a handful of paths 1.) The defendant commits the murder at the request of the third party making the threat. The third party upholds his promise to terminate the threat. One person has been murdered. 2.) The defendant commits the murder. The third party does not uphold his promise to terminate the threat and kills the person they are threatening. 2 persons are murdered. 3.) The defendant refuses to commit the murder. The third party kills the person who was under the threat. One person is murdered. 4.) The defendant refuses to commit the murder. The third party, realizing his bluff has been called, tries to escape and does not kill the person under threat. No person is murdered.

In the case of duress, duress is an excuse for committing a criminal action, as opposed to other affirmative defenses, like self-defense. To give an example, under duress, the defendant says "Yes I did it, but here's my reason...". This is different than self-defense, which is a justification for actions that are ordinarily be elements of a criminal action (I.E. I did commit a homicide, but it was not murder because there was no premeditation.).

Remember all murder is a form of homicide but not all homicide is murder (the killing of a human by another human). In order to be murder, three elements need to be in evidence. Namely, that a homicide occurred, that the homicide was not justified or excusable, and that the action was premeditated. Self-Defense argues that the homicide was justified because had you not killed your victim, criminal harm would have come to another person (either yourself or others) and thus the "victim" wasn't really a victim, but a threat. Whether you planned to act in self-defense in a premeditative way is not considered because the justification of the homicide is clear and all other forms of criminal homicide look to the level of prior planning than of premeditation of an unjust homicide.

In murder under duress, this logic does not hold because the person who is the victim is not a threat to others. It is clear that premeditation did occur (since the person placing you in a state of duress discussed with you how to avert the threat being made). In this situation, the victim of this murder is not a threat to the defendant or those close to the defendant. Thus we must ask if the commission of murder is excusable if it will prevent the commission of another murder. While the defendant may value the person who's safety of those close to him under threat, in the eyes of the law, the life of the stranger is no more or less valuable than the life of the loved one. As the stranger is not a threat to the loved one if they continue to live, there is not justification. They are a true victim in every outcome of this scenario where the defendant choses to murder them. However, there is no guarantee that the third party will deliver on his threats if the defendant refuses to murder the targeted victim. In that situation, there is a chance that the defendant, by calling the third party's bluff, can save two lives. In all situations where the third party honors his promise, then only one person dies... and in a situation where the defendant kills another person and the third party does not honor the agreement, than 2 people will die. The law then holds that by the logical outcomes, duress cannot excuse murder because in refusal to comply, you have the best possible outcome to the scenario. Banks are insured, property can be replaced, but lives are one of a kind and cannot be replaced or traded.

With that in mind, in this case, in the U.S. the judge will be able to deny the use of the defense before the jury, so the argument cannot be made to persuade them to acquit. Further, under sentencing, the judge may be lienet and give a slap on the wrist as a way of showing that no one should be hung for making the wrong choice in a situation where there was no right choice. The reason why we have humans running our courts and not pure legal logic, is because the law should be just in all matters... which sometimes means that the law must show mercy to those who commit crimes because they felt they had no choice. A judge or a jury or any of a number of human beings involved in the justice system can recognize that a lay man may not understand the nuance... but as is the case ignorance of the law is never an excuse to break it.