Reconceiving Coercion-Based Defenses

Abstract

Coercing someone is sometimes wrong, and sometimes a crime. People subject to coercion are sometimes eligible for criminal defenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological phenomenon of interpersonal abuse in which one person pervasively regulates the choices of another. Coercive control is sometimes carried out through violence or threats of violence, but often through ostensibly non-violent forms of degradation (such as humiliation and isolation). Coercive control is often evinced in abusive intimate relationships, including in human trafficking. People subject to coercive control are undeniably coerced. Yet the wrongful pressure model cannot adequately explain why. Those subject to coercive control are ineligible for coercion-based criminal defenses, such as duress and affirmative defenses for victims of human trafficking, in part because of the inadequacy of the wrongful pressure model. This Article articulates and defends an alternative understanding of coercion that, after philosopher Scott Anderson, we call the “enforcement approach” to coercion. According to the enforcement approach, coercion involves the coercer’s using power to determine what the target will or will not do. The enforcement approach is superior to the wrongful pressure approach as an explanation for what makes coercion wrong and why being subject to coercion should provide a defense to criminal liability. Furthermore, the enforcement approach better explains how coercion operates pervasively, such as in coercive control contexts. The enforcement approach also invites a broader rethinking of coercion-based criminal defenses. We utilize the enforcement approach to propose a model criminal defense for those subject to coercive control that would supplement existing defenses.