Duress Per Minas as a Defence to Crime: I

Abstract

The title calls for two definitions, or perhaps rather descriptions. A man acts under duress when another persuades him, by the uttering of threats, to commit a criminal act which, but for the threats, he would not have committed. The threats are threats of personal violence directed either against himself or against those with whom he has a close family connection. They would not, for my present purposes, include threats to expose the victim to ridicule, contempt, financial loss or criminal proceedings. Threats to injure a stranger, or even someone, such as the sovereign, whom the victim is under a public duty to protect, are not included. That is why this is a description rather than a definition; I am limiting the scope of the discussion to more manageable proportions. Defence can mean one of two things; I will take my illustrations from the crime of murder. First, if a man charged with murder shows that he killed a violent assailant who would otherwise have killed or seriously injured him, he is entitled to an acquittal. He has a good defence. To kill in such circumstances is not murder or ’ any other crime. It is as lawful as is a killing by the public executioner or by a soldier in war. Secondly, if he satisfies the jury that he killed because he was subjected to intolerable provocation — for example, that he came on his victim and killed him in the act of adultery with his wife — he will be entitled to have the charge reduced from one of murder to one of manslaughter. His homicide was unlawful, but his culpability was reduced. He has a complete defence to the major charge, resulting in a verdict of not guilty, but not to the minor charge, to which he can plead provocation as a defence only in mitigation of sentence.