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Duress & Consent Defense

Duress & Consent Defense in Criminal Law

The duress and consent defenses are two related but distinct legal defenses that can be raised in a criminal case. Both defenses acknowledge that the defendant committed the criminal act, but argue that they should not be held criminally liable due to the circumstances surrounding the act.

What is the Duress Defense?

The duress defense argues that the defendant was compelled to commit the crime under immediate threat of serious bodily injury or death. To successfully argue duress, the defense must establish that:

• The defendant was under an immediate threat of serious bodily injury or death. The threat does not have to be explicit – simply pointing a gun in a threatening manner could constitute a threat. However, the threat must be immediate and unavoidable. A general fear of future harm is not sufficient.
• The defendant had a well-grounded fear that the threat would be carried out. The fear must be reasonable under the circumstances. The standard is objective – whether a reasonable person would also fear the threat being carried out.
• The defendant had no reasonable opportunity to escape the threat. If the defendant had any reasonable alternative to committing the crime, such as fleeing or seeking official protection, the duress defense will fail.
• In some jurisdictions, the defense is not available if the defendant recklessly or negligently placed themselves into the situation under which the threat was made. For example, if the defendant joins a criminal gang and is then threatened into committing a crime, they cannot claim duress since they put themselves in that situation.

The classic example of duress is a defendant who commits a crime with a gun pointed at their head. Other examples could include threats of physical violence against a loved one or threats of imprisonment or deportation.

Duress is an affirmative defense – the defendant bears the burden of presenting evidence to establish each element of the defense. The prosecution then has to disprove the defense beyond a reasonable doubt.

Limitations on the Duress Defense

There are several limitations on the duress defense:

• Murder: Most jurisdictions do not allow duress as a defense to murder. The rationale is that taking an innocent life is never justified, no matter the threat.
• Felonies: Some states limit the defense to crimes less than a felony. The Model Penal Code does not allow duress for any felony that threatens serious bodily injury or death.
• Negligence: As mentioned above, if the defendant was negligent in putting themselves into the situation, they cannot claim duress.
• Prison escapes: Duress is generally not allowed as a defense for prison escapes. The rationale is that the prisoner should seek official protection rather than escaping.

What is the Consent Defense?

In criminal law, consent can serve as a defense when it negates an element of the crime. For example:

• In battery, intentionally touching another in a harmful or offensive manner is a criminal act. If the “victim” consented to the touching, it does not meet the definition of battery.
• In theft, taking property without consent is criminal. If the owner consents to the taking, it is not theft.

Consent works as a defense because it shows the defendant did not have the requisite criminal intent – the “mens rea” – to commit the crime. Since the prosecution must prove criminal intent beyond a reasonable doubt, consent introduces enough doubt to defeat the charge.

However, consent is limited as a defense in several ways:

• Consent to serious bodily injury is not a defense. Consenting to a fist fight does not justify battery with serious injuries.
• Consent is not valid if obtained through fraud or deception.
• Consent by an incompetent person or minor may not be valid.
• Consent obtained under duress or coercion is not valid.

Using Consent to Negate Duress

An interesting intersection of consent and duress arises when the prosecution argues that apparent consent was actually obtained under duress. For example:

• The defendant claims the victim consented to sex. The prosecution argues the consent was only given because the defendant threatened violence if the victim refused.
• The defendant claims the victim consented to give them money. The prosecution argues the consent was only given because the defendant extorted the victim.

In these situations, the prosecution would argue that the consent was invalid because it was obtained through duress or coercion. The duress negates the consent, allowing the criminal charges to proceed. The defendant cannot claim both that the victim consented and acted under duress.

Examples of Duress & Consent Defenses

Here are some examples of how duress and consent defenses could play out in real criminal cases:

• Bank Robbery: Dan sticks up a bank with a gun and orders Ray, a bank teller, to empty the cash drawer. Ray complies out of fear Dan will shoot him. Dan is charged with armed robbery. He argues duress – he only robbed the bank because he feared for his life. The prosecution counters that Ray’s cooperation was not true consent since it was obtained by duress.
• Statutory Rape: Mike, 16, is charged with statutory rape of Sara, 14, who was legally unable to consent. Mike argues Sara consented to sex. But the prosecution argues Sara only consented because Mike got her drunk beforehand until she was nearly unconscious. Her consent was obtained under duress caused by her intoxication, negating Mike’s consent defense.
• Assault: Joe and Bill get into a bar fight. Bill suffers a broken nose. Joe claims Bill consented to the fight. But Bill says Joe threatened him into the fight, constituting duress. Joe cannot claim both consent and duress – he will have to pick one defense or the other.
• Theft: Alice asks to borrow Bob’s car. Bob agrees. But the prosecution charges Alice with theft, alleging she never intended to return the car. Alice argues Bob consented to her taking the car. But Bob says Alice threatened to falsely accuse him of rape if he did not comply, meaning his consent was obtained under duress.

Duress vs. Necessity Defense

The necessity defense is related to duress and also argues that criminal conduct was necessary to avoid greater harm. However, necessity and duress have some distinctions:

• For necessity, the harm avoided does not need to be immediate, while duress requires an immediate threat.
• Duress involves a threat from another person, while necessity may involve threats from natural forces or circumstances.
• The defendant bears the burden of proving necessity, while the prosecution bears the burden of disproving duress.
• Duress requires that the defendant have no reasonable alternative to committing the crime. Necessity only requires that the criminal act was the least harmful option.

So in situations where the threatened harm is less immediate or does not involve threats from another person directly, the necessity defense may be more applicable than duress.

Conclusion

The duress and consent defenses acknowledge that the defendant committed the criminal act, but argue circumstances justify an exception to criminal liability. Both defenses can introduce reasonable doubt about the defendant’s criminal intent. However, neither defense is absolute – there are limitations on their use, and the prosecution can negate claims of consent with evidence of coercion or duress. Defendants should consult closely with legal counsel to determine if a duress or consent defense is viable in their specific case.