Necessity and Duress

The defense of necessity is available where the defendant acted under the reasonable belief that committing his offense would prevent a greater evil or harm from occurring. For example:

Christopher lives in a town that sits right on the edge of the Hundred Acre Woods. At the end of a hot and dry summer some brush in the woods catches fire and a forest fire quickly develops and spreads. The fire is quickly heading toward the town and Christopher believes that if he burns the row of houses directly on the edge of the forest he will create a fire wall which will then protect the rest of the town. If Christopher does, in fact, burn some of the houses under the reasonable belief that it will protect the rest of the town from the forest fire, he will be able to use the defense of necessity if he is charged with arson.

There are, however, several requirements that must be met in order for the defendant to use necessity as a defense.

1. The defendant must reasonably believe that an actual threat exists. Therefore, in order to use the defense, Christopher must reasonably believe that the forest fire will destroy all or part of the town. Please note that as long as this belief is reasonable, he will be able to use the defense even if the forest fire never actually approaches the town.
2. The defendant must reasonably believe that the threat he is trying to prevent is greater than the damage that will result from his actions. Therefore, Christopher will be able to use the necessity defense if he reasonably believes that burning some of the houses at the edge of the forest is a lesser evil than allowing the entire town to burn.
3. The threatened harm that the defendant is trying to prevent with his actions must be imminent.
4. The defendant can only use the necessity defense if there was no other, less harmful way to avoid the threatened danger. In the above example, Christopher will only be able to use the necessity defense if burning a few of the houses was the least harmful way to protect the town.
5. The defendant will only be able to use the defense if the defendant himself was not at fault in creating the situation that made it necessary to commit his crime. In other words, if Christopher himself had been responsible for the forest fire, he would not be able to use necessity as a defense to burning those houses.

Most jurisdictions hold that economic necessity alone does not justify the commission of criminal acts. Therefore, one who commits a crime out of economic necessity, for example if a person robs a convenience store because he is unemployed and has no other way of making money and feeding his family, he will not be able to use the necessity defense.

An interesting issue that has evolved over the last twenty-five years has been situations in which prisoners have escaped from jail and claim that escaping was the only way to avoid greater harm such as sexual assault and beatings. Typically, these arguments have been rejected where the prisoners have had other non-criminal options available to them. However, there have been a few cases where the court has allowed this defense to at least be argued to the jury, where the defendant has proven that efforts to secure protection from prison authorities or the courts would have been either impossible or useless. However, the same courts have indicated that, even when necessity can apply to the crime of escape, the defendant will only be able to use the defense successfully if he can show that, once the immediate threat of harm was over, he turned himself in to proper authorities. See People v. Lovercamp, 43 Cal. App. 3d 823 (1974). For example:

Fred is currently serving a fifteen year prison sentence for breaking into Barney’s house. Fred has suffered several beatings and sexual assaults from other inmates in the prison. Fred has tried to alert the prison authorities but they refuse to listen to him. Finally, Fred escapes from prison to avoid further abuse. Fred makes his escape one night but, first thing the next morning, he turns himself in to the local police, telling them who he is, what he has done and why. Fred is immediately arrested and eventually tried for escaping from prison. In this case, Fred will be able to use the necessity defense because he had tried and exhausted his non-criminal options. Further, he will probably succeed with this defense because he can show that as soon as the imminent threat of abuse was over he turned himself in to the proper authorities.

The defense of duress can be made when the defendant has been forced to commit a criminal act by another person. Please note that the difference between duress and necessity is that necessity can be raised only where the defendant committed his criminal act as a result of the physical forces of nature, whereas the defense of duress is raised when the defendant committed his act as a result of threats made by another person.

There are five different requirements that must be met in order for duress to be raised. First, the defendant must have actually been threatened. Please note that reasonable belief that he was threatened is not enough. In order to raise the defense, the defendant must have actually been threatened.

Second, according to the common law, the threat must have been of death or serious bodily harm. However, modern laws do not require that the threat be of death or serious bodily harm and they will often allow the defense even if the threat was of some lesser bodily harm.

Third, the threat must have been made against another person. Please note that the threat does not have to be against the defendant himself or the defendant’s family. A threat of harm to a complete stranger is enough to give rise to this defense.

Fourth, the threat must be of immediate harm. Threats of future harm, no matter how serious they are, are not enough to give rise to this defense.

Finally, it must be shown that the defendant had no opportunity to avoid the threat by a non-criminal method.

Duress is a defense to every crime except intentional killing and attempted intentional killing. While duress is not a defense to intentional killing, it may be used to establish a lack of premeditation. Therefore, while it will not insulate a defendant completely from a conviction, it may help him avoid a murder conviction in favor of a lesser manslaughter conviction.

Further, duress is not available if the defendant either intentionally or recklessly put himself in a position in which he should have foreseen that he would have been subject to duress. See Williams v. State, 646 A.2d 1101 (Md. 1994). For example:

Fred borrows fifty thousand dollars from the Corleone crime family for a period of two months. At the end of two months, Fred cannot pay the money back. Fred is kidnapped by members of the Corleone family and brought in front of Don Corleone, the head of the family. Don Corleone tells Fred that he must pay the money back even if he has to rob a bank to get it or Don Corleone will kill him. Don Corleone gives Fred two days to repay the money. As a result, Fred does, in fact, rob a bank. In this situation Fred will not be able to use duress as a defense to a charge of robbery, because he intentionally placed himself in a position in which he should have foreseen that he would be subject to duress.