We’ve seen this trope many times in movies and on TV. A bad guy points a gun at someone or threatens their family or puts a bomb vest on them (to name a few examples) and tells that person to commit a crime (be it kill someone else, rob something/someone, give access to secret material, etc.).
My question is, can that person who was compelled still be held criminally accountable for committing that crime? Can the government say they do not care about the circumstances…bottom line is you did the crime.
Obviously this is going to depend on the law of the jurisdiction where the offence is charged. But most criminal codes in most jurisdictions will allow a defence called “duress” or something of the kind, in which somebody overbears you and gets you to commit a crime with the use of a sufficiently drastic threat. There will generally be a provision to the effect that your belief in the threat must be genuine and reasonable, and the threat itself must be sufficient grave that committing the crime is a reasonable response to it.
And there will be exceptions to cover the case where you put yourself in the way of the threat - e.g. you agree to participate in a bank robbery; at the last minute you want to back out; the other gang members threaten you so as to secure your continued participation.
Speaking of bank robberies. Patty Hearst participated in a bank robbery, and then claimed she was forced into it. But she had been making public statements to the effect that she had joined with her kidnappers, who were calling themselves the “Symobionese Liberation Army”. She claimed that they had brainwashed her.
She was tried for the bank robbery and convicted.
(Her overall case, and the outcome, was all far more convoluted than the above suggests. Wikipedia gives a more detailed account.)
An attorney friend of mine told me that is a discussion question in law school. What is they are going to shoot you? What if they threaten to cut off a finger? What if they will rip off a hangnail? It is relative.
Here’s the pattern jury instruction on Duress (Washington)
Duress is a defense to a charge of (fill in crime) if:
(1)The defendant participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the defendant that in case of refusal [the defendant] [or] [another person] would be liable to immediate death or immediate grievous bodily injury;
(2)Such apprehension was reasonable upon the part of the defendant; and
(3)The defendant would not have participated in the crime except for the duress involved.
[Threat means to communicate, directly or indirectly, the intent to cause death or grievous bodily injury]
[The defense of duress is not available if the defendant intentionally or recklessly placed [himself] [herself] in a situation in which it was probable that [he] [she] would be subject to duress.]
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].
It is not a defense to murder, and a few related crimes.
Something like, “Steal a dollar from the tip jar, or you and your family get knocked off.” Vs. “Kill this whole family, or your Brony fandom goes public.”
(Technically, in a convenience store robbery, the clerk is committing theft by stealing from the cash till, and giving it to the robber, but no one is ever going to charge them with anything, unless some sort of collusion is proven.)
I’m thinking that in most cases, you are going to be guilty of committing whatever crime you were compelled to commit. But that’s why there are such things as extenuating circumstances. Depending on what the crime vs the threat, they may go more lenient on you, or may choose not to charge you at all.
In Illinois, the defense of coercion can be raised as an affirmative defense to criminal charges. Generally it requires the defendant to prove, by a preponderance of the evidence, that they reasonably feared that an outside person or group would immediately kill or seriously injure themselves or another if they did not commit the offense; and that they had no reasonable opportunity to refuse to commit the offense and avoid the threatened harm.
From the 7th Circuit Committee on Jury Instructions:
"The defendant bears the burden of proving the defense of coercion by a preponderance of the evidence. United States v. Dixon, 548 U.S. 1, 15 (2006). To be entitled to a coercion instruction, the defendant must make a sufficient evidentiary showing. If the defendant had a reasonable alternative to violating the law, then the defense does not apply. A defendant’s fear of death or serious injury is generally insufficient without more; there must be evidence that the threatened harm was present, immediate, or impending. If the defendant committed a continuing crime (such as conspiracy), he must have ceased committing the crime as soon as the claimed duress lost its coercive force. United States v. Sawyer, 558 F.3d 705, 710–11 (7th Cir. 2009)
In Canada, the answer depends. Most serious crimes are excluded from this defence. However, if the compelled person takes reasonable steps to minimize involvement and reports it to the authorities when possible, it can be used as a defence in some cases. There are a list of specific factors including immediacy, threats made by someone physically present as well as other criteria. Somewhat similar situations such as aiding, abetting and counselling an offence often have strict penalties.