Coercion by Unlawful Force

Coercion by Unlawful Force

The first working element of § 2.09(1) concerns the pressure itself. The actor must have engaged in the charged conduct because he was coerced to do so by the use of, or a threat to use, unlawful force against his own person or the person of another.¹ That clause makes three separate demands. The pressure must be force or a threat of force, the force must be unlawful and directed at a person, and the pressure must be the reason the actor did what he did. The last demand rests on the statute's causal word, because, and it deserves attention first since the other two parts depend on it.

The causal word matters because the excuse rests on the idea that a threat took away the actor's fair opportunity to obey the law. Where the threat took nothing away, nothing remains to excuse. In a bank-robbery illustration, Olga gathers the cash into a bag for the robber only because she has been threatened with imminent deadly force, so she has a duress defense and cannot be convicted as an accomplice.² The threat and the conduct are linked, since without the threat she would not have touched the money. A threat that merely coincides with an offense the actor was already set on committing has no such link.

The kind of pressure is also limited. Section 2.09 keeps the common-law requirement that the threat be one of personal injury, so a threat to property alone does not support the defense. It widens the common-law rule in one respect, since any threat of unlawful force counts, including a threat of minor physical harm.³ The focus on persons reflects which pressures most clearly leave an ordinary person without a fair choice: lost property can be replaced, but bodily harm cannot be undone. The word unlawful serves a different purpose. A threat of arrest, prosecution, or ordinary hardship is a consequence the law itself permits, and excusing a crime committed to avoid it would let the actor override the legal system's own decision about what may happen to people.

The element also leaves a timing question open. The text of § 2.09(1) says nothing in terms about how soon the threatened harm must arrive, and the common law answered that question with a demand for imminence that the Code treats differently.⁴ The two questions therefore get separate treatment below: first what kind of force counts and whom it may be aimed at, then how soon the harm must be threatened.

Unlawful Force Against Persons

The coercion clause of § 2.09(1) puts three questions into one sentence, and the cleanest way to apply it is to take them separately. The first asks what the pressure consisted of: the actor must have been coerced by the use of, or a threat to use, unlawful force, so the clause reaches force actually applied to compel the act as well as a warning that force will follow.⁶ The second asks where the force was aimed, and the text answers that it may be aimed at the actor's own person or at the person of another.⁷ The third asks what kind of pressure qualifies, and the answer is force against a person, which excludes other forms of leverage. Courts parse the clause the same way. In Commonwealth v. DeMarco, which applied Pennsylvania's statute derived from § 2.09, the first element of the defense was stated as the use of, or a threat to use, unlawful force against the defendant or another person, and the court added that, unlike under the common-law rule, the force need not be of present and impending death or serious bodily injury.⁸ How soon the harm must be threatened is a separate question, which the section after this one takes up.

The demand for force or a threat of force separates a threat from an inducement. A threat makes refusal costly in bodily terms, because the actor who refuses, or someone the actor cares about, will be hurt. An offer of reward makes refusal costly only in the sense that the reward is lost. Only the first leaves a person without a fair opportunity to avoid the crime, and a fair opportunity is what the excuse exists to protect.

Mary's case shows the second phrase at work. The commander told her that he would kill her and her entire family unless she smuggled the cocaine, so the threatened force was unlawful and was aimed at other persons as well as at Mary herself.⁹ Had the commander threatened only the family, the clause would still be satisfied, because the Code counts force against the person of another and attaches no condition about who that person is.¹⁰

That breadth departs from the early common law, which limited duress to cases in which the defendant personally was threatened, so that threats to strangers, and even to a spouse or children, were insufficient.¹¹ Most states have since discarded that limit and allow the claim where anyone's life or bodily safety is threatened, and the overwhelming majority of modern duress statutes extend to threats against third persons.¹² The reason for the extension lies in what the excuse asks. It asks whether a threat left the actor without a fair opportunity to obey the law, and a threat to a child, a spouse, or a parent can overbear a person's will as surely as a threat to the actor's own body. A rule confined to the actor's own person would excuse the one who yields to save himself yet condemn the parent who yields to save a child, even though both acted under pressure that no one can fairly demand they resist. The Code's text sets no relationship requirement, so the closeness of the endangered person is not a threshold test under this clause. It bears instead on whether a person of reasonable firmness could have resisted, which the next major section addresses.¹³

The same word, duress, names a different doctrine in contract law, and the difference lies in the kind of pressure. A contract can be avoided when assent was induced by an improper threat, and today that label covers a threat to commit a crime or tort, a threat of criminal prosecution, a threat to abuse civil process, blackmail, a bad-faith threat not to perform a contract, and even a threat to fire an at-will employee unless the employee agrees to an unrelated deal.¹⁴ Contract duress began far narrower than that: in the eighteenth century it required actual imprisonment or a threat to life or limb, and it has since grown to include any wrongful act or threat that overcomes the victim's free will.¹⁵ The Code's criminal defense widened in its own way, because it counts any unlawful force and not only deadly force, but it did not follow contract law into pressure that involves no force at all.¹⁶ The two doctrines part ways because their consequences differ. Contract duress cancels the agreement and takes back the gain the coercer extracted, so the loss falls on the person who applied the pressure.¹⁷ Criminal duress excuses a completed offense, and the loss falls on the victim of that offense and on the public interest in enforcing the law. Because the cost of the defense lands on others, the Code reserves it for pressure under which yielding is most understandable and resistance would cost the most, which is force against a person.

Students lose points on this element by carrying the contract-law question, whether the threat was improper, into a criminal problem. The criminal question is narrower: whether there was unlawful force, or a threat of it, against a person. A threat to ruin a business, to cut off a livelihood, or to expose an embarrassing secret may be improper for contract purposes, yet none of them is force against a person, so none supplies the coercion that § 2.09(1) requires.¹⁸

Immediacy: Common Law and MPC

The coercion clause settles what kind of force counts and whom it may be aimed at, but it leaves open how soon the threatened harm must arrive. The common law answered that question with a fixed timing requirement, and the Code answered it with a standard instead.²⁰ The common-law rule comes first because it is the baseline against which the Code's change has to be measured.

At common law the defense demands a threat of imminent death or serious bodily injury. The instruction quoted in State v. Rosillo shows the rule in working form: a person is not guilty if he commits the crime only because he reasonably believes, from another's threats, that he would be killed immediately if he refused; his fear of instant death must continue throughout the time the crime is being committed; it must not have been possible for him to withdraw in safety; and threats of future danger are no defense.²¹ That formulation carries three separate timing conditions. The threat must be immediate when the actor yields, the fear must last as long as the crime does, and the actor must have had no safe way out. A robber who draws a gun on a bank teller and demands the cash on pain of death presents the paradigm case, because the threat is of immediate death, the fear lasts through the handover, and the teller has no safe means of withdrawing, so the teller who hands over the money is not guilty of larceny.²²

The reason for the immediacy rule lies in what the excuse presupposes. Duress excuses because the threat left the actor without a fair opportunity to obey the law, and an actor who faces no harm right now usually still has such an opportunity, since time remains to seek help or get away. Most courts accordingly require immediacy to keep defendants from relying on duress when there was time to do something about the threat.²³ The same logic produces the rule's corollaries. A person threatened with immediate harm can lose the defense by passing up a reasonable opportunity to escape when escape would not expose him unduly to death or serious injury, and if the offense is a continuing one, he must end his conduct once the coercion has lost its force.²⁴ Courts frequently turn immediacy into an obligation to report the threat to law enforcement or to surrender at the first reasonable opportunity. Mary, the smuggler threatened by the paramilitary commander, would therefore have to persuade a jury that she had no reasonable chance to seek police protection, or that the police could not have protected her and her family.²⁵

The rule's reach shows most clearly where the defendant's best argument is that reporting the threat would have been futile or dangerous. A footnote in Rosillo quotes the reasoning that false testimony under oath is not excused, because the witness can appeal to the law to shield him from the threatened danger and so faces no impelling danger that is present, imminent, or unavoidable.²⁶ Narcotics couriers who say drug lords have threatened their families meet the same rule: telling the arresting authorities in the United States does little to protect relatives abroad, yet courts almost uniformly refuse to let the defendant even raise the claim.²⁷ The prison-escape cases push the continuing-fear requirement furthest. Culminating in Bailey v. United States, they treat escape as a continuing offense, so an escapee who does not turn himself in once sufficiently far from the prison loses the claim as a matter of law, although some courts confine that rule to escape cases and send the question to the jury when a defendant outside the prison setting continued to fear the threat.²⁸

Jurisdictions do not apply the timing requirement with equal rigor, and two decisions show where the line can fall when the threat is not immediate. In State v. Toscano a chiropractor who had agreed with others to file false medical claims said that, after he balked, a co-defendant reminded him of the very dark entrance to his office and warned that he and his wife would be jumping at shadows; the court let duress go to the jury even though no harm was threatened immediately.²⁹ The court treated the lack of temporal immediacy as relevant but not as a bar, so the defendant would still have to establish the threats and a reasonable belief that the police could not protect him.³⁰ By contrast, in People v. Carradine a witness afraid to testify against a street gang was refused the defense, perhaps in part because she could not or would not identify any specific threat from a specific gang member.³¹ What separates the two is the specificity of the threat. Toscano rested on a veiled but particular warning from an identified co-participant, aimed at him and his wife, while Carradine rested on a generalized fear of an organization.

The Code removes the fixed timing requirement. Section 2.09(1) contains no word about when the harm must arrive; it asks whether the actor was coerced by unlawful force, or a threat of it, "which a person of reasonable firmness in his situation would have been unable to resist."³² In Commonwealth v. DeMarco, which applied a Pennsylvania statute derived from § 2.09, the court said that, unlike under the common-law rule, the force or threatened force need not be of present and impending death or serious bodily injury, and that the relevant inquiry is whether it was force a person of reasonable firmness in the defendant's situation would have been unable to resist.³³ Among the salient situational factors the trier of fact should weigh are the severity of the offense, the nature of the force, and the alternative ways the defendant may have averted it, so the availability of help remains relevant as one circumstance inside the standard.³⁴ Statutes of this type are the ones that reach more remote injury and injury short of serious bodily harm.³⁵

The change is one of method: a fixed temporal test becomes one consideration within a holistic test. The fixed test treats the clock as the measure of coercion, and the clock is an imperfect measure. A credible promise that the actor's family will be killed next week may overbear a person of ordinary firmness as thoroughly as a threat of death this minute, while a vague warning of unspecified harm in the distant future may leave ample room to refuse. A standard lets the timing of the threat and the chance to seek help count as evidence on the single question that matters, which is whether a person of reasonable firmness could have resisted.

Students lose points here in two directions. One error is to apply the common-law imminence requirement to a stem set in a Code-based jurisdiction, and the other is to say that the Code makes timing irrelevant. Timing and available alternatives still matter under the Code, but they enter as circumstances bearing on reasonable firmness and do not operate as a threshold the defendant must clear. The statute's wording usually signals which rule governs, because most duress statutes require that the harm be imminent, immediate, or instant, while some include no such limitation.³⁶

The Code's treatment of timing depends on the reasonable-firmness standard, which now does the screening work that imminence did at common law. The next section takes up that standard, including who the hypothetical person is, which of the defendant's characteristics are built into that person, and how circumstances such as the availability of alternatives are weighed.