Duress as a Defense

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 What Does Duress Mean?

Duress can be a defense to a criminal charge if the defendant can show they were forced to act against their free will by the threat of immediate force or violence. A version of the duress defense may apply in some situations in civil cases as well.

For instance, a person who is charged with a crime may raise duress as a defense. If they succeed in proving that they were subject to duress, they would claim that they cannot be held criminally liable for their actions. It was because they were subject to duress that they committed the criminal act. Thus, they essentially admit to the act but claim they should not be held liable because they had no choice.

In civil cases, a person also has a right to raise a duress defense if a threat of immediate force or violence was used to compel them to enter into a contract or to breach a contract. Or a person might use the duress defense if they are sued for committing some other kind of civil wrong, e.g., civil assault or battery.

What Are Some Examples of Duress?

Duress can come in many forms and can arise in many different situations. Some of the types of duress may include:

  • A person is held at gunpoint and forced to drive their car well in excess of the speed limit;
  • A person is held at knifepoint and forced to steal an item from a store or rob a person;
  • Another person holds up their fist and threatens to strike someone if they do not perform some sort of illegal act;
  • Use of economic pressure or threats to force a person to commit a criminal act of some kind.

A threat to harm a person economically, e.g., threatening to empty a person’s bank account if the person making the threat has the power to do it, might also constitute a defense to a crime in some circumstances.

What Are the Four Elements Required to Prove Duress?

Pursuant to criminal laws, duress is a defense used to excuse guilt for doing an illegal act. A defendant who claims they acted under duress must typically show the following elements:

  • They were in immediate danger that could possibly result in death or serious bodily harm;
  • They were fearful that the person would actually cause them such harm;
  • There was no other reasonable way to avoid the immediate threat of harm other than to commit the illegal act that was demanded of them.

Thus, for instance, if a person states, “I’m going to beat you up if you do not go into that store and steal that jacket for me,” this might constitute duress. However, if the person says, “I will crash into your car tomorrow if you do not steal that jacket for me,” it might not be possible to raise the duress defense if the jacket is actually stolen. This is because the threat of harm might be neither immediate enough nor serious enough to be considered duress.

However, the circumstances of the duress are always looked at on a case-by-case basis. The requirements for duress are broad, on purpose, to allow for different circumstances to qualify. While there is flexibility in the standards for a defense of duress, it still requires that the defendant behaved reasonably given all the circumstances of the situation in which they found themselves.

For example, say a criminal jumps into a person’s car and threatens them with a plastic toy knife that is brightly colored and clearly looks like a toy. In that case, the defense of duress might not be available to them. Even if the person was very scared, the truth is that there might not have been any actual physical threat, even if the criminal was very menacing.

On the other hand, the circumstances might have been such that even with a toy knife, the criminal was very threatening.

Can Duress Be Used as a Defense for Murder Charges?

Generally speaking, most state criminal laws do not allow a person to use duress as a defense for murder. However, some states may allow a duress defense to reduce a murder charge to a lesser crime, such as manslaughter.

For the charge of manslaughter, the “duress” would be more appropriately called “provocation.” This is where a person is provoked into killing another person by the heat of passion. However, this requires certain elements to be shown, which are somewhat different from duress.

Ultimately, the criminal system is hesitant to say that someone can use duress as a defense to murder. This is because it would mean that one person can be coerced or forced into killing another person.

How Is Duress Used in an Intolerable Prison Conditions Context?

Within the last few years, perpetrators charged with prison escape have tried to use the defense of duress based on the threat of physical violence and homosexual rape that they faced in prison. In many of these cases, trial courts were not sympathetic and disallowed the duress defense.

Reportedly, on appeal of their convictions, defendants have met with more success, and courts of appeal have ruled that trial courts should allow defendants to present the defense of duress. They have ordered trial courts to hear the evidence presented by defendants about intolerable, possibly violent prison conditions that drove them to escape.

What Are the Limitations for a Duress Defense?

The defense of duress is unavailable in some states for certain crimes, such as the crime of murder. Also, in some states, the defense may not be available if the defendant placed themselves in a dangerous situation, whether through negligence or some other faulty behavior on their own part. If a defendant puts themselves in a violent situation in which threats are likely, then the defendant cannot use the duress defense.

How Does Duress Apply to Contracts?

Under civil contract law, there are two types of duress. The first is typically referred to as physical duress. An example of this serious form of duress would be forcing someone to sign a contract at gunpoint. Contracts formed under physical duress conditions are void, and courts do not enforce them.

The second form of contract duress is generally referred to as economic duress. For instance, this can happen if a person would face complete financial ruin unless they agreed to sign a contract. Or, threats might be directed towards goods, e.g., a threat to destroy or withhold a shipment of goods unless another party to a contract does something they do not want to do.

These contracts are considered voidable rather than void because a person ultimately has a choice to honor the contract or not. The elements for economic duress are usually listed as follows:

  • There is an ongoing contract between the plaintiff and the defendant;
  • The defendant threatens to terminate the existing contract;
  • Subject to duress, the plaintiff accepts the defendant’s terms and continues to perform under the contract.

In order to use the defense of economic duress, a person should be prepared to show that their situation has all the elements of the defense. Laws regarding economic duress and contracts may vary from state to state.

Do I Need a Lawyer for Help Raising Duress as a Defense?

If you have been accused of any type of crime and believe you have a duress defense, then you should consult the advice of a criminal defense lawyer in your area. A duress defense can often reduce any charges you might face, and in many cases, it can be a complete defense.

If you are facing a civil lawsuit for breach of contract and believe duress has played a role either in the formation of the contract or at some other point in the contract relationship, a contract lawyer in your area may be able to help you find a solution to the problem.


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