# Two questions about duress (necessity?) (legal) **URL:** \ **Category:** Factual Questions\ **Created:** [August 19, 2014, 10:56pm UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953 "2014-08-19T22:56:39Z")\ **Posts on this page:** 11\ **Page:** 1
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [August 19, 2014, 10:56pm UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953/1 "2014-08-19T22:56:39Z")
The cast: Asshole, Bullied, and Child, all under American law (how much does state really matter?) First question: Asshole threatens to kill both Bullied and Child unless Bullied has sex with Child such that Asshole can watch. I suspect that Bullied can raise a duress defense and get off scott free, but statutory rape is a strict liability offense so the point of duress, that it removes _mens rea_, doesn’t seem relevant. However, it would seem a travesty that Bullied would get the worst of it compared to Asshole when all this went to trial. Second question: Asshole threatens to kill Bullied and Bullied’s whole (large) family unless Bullied kills one other person. Photographs, addresses, and photographs and addresses of friends are all produced, and are convincing. I know that, in general, a life for a life isn’t a fit topic for duress: If you kill someone because someone threatens to kill you or one other person, the most duress can do is reduce your crime to manslaughter (lack of _mens rea_) but each life weighs equally, so the crime isn’t erased. How does that work if your killing one person would credibly save five people? Ten people? This seems like a necessity defense, given that it’s focused on balancing harms, and… has anyone heard the one about the fat guy, the trolley, and the busload of orphans, nuns, and puppies? ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [September 7, 2014, 10:16pm UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953/2 "2014-09-07T22:16:39Z")
Bump. ---
**Author:** ![ruadh](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@ruadh](https://boards.straightdope.com/u/ruadh)\ **Post date:** [September 8, 2014, 6:06am UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953/3 "2014-09-08T06:06:28Z")
In the absence of any replies about American law, I’ll give you the common law approaches: 1. The fact that an offence is strict liability doesn’t mean the duress defence isn’t available for it. There are different jurisprudential theories about how duress impacts on mens rea and actus reus; the leading one now seems to be that the consideration of whether duress is present is wholly separate to the consideration of mens rea and actus reus. 2. There’s no necessity defence to murder, either, and this is the case even if a number of lives are saved as a result. See _R v Dudley and Stephens_ where a cabin boy was killed as food for a group of stranded sailors. ---
**Author:** ![Isilder](https://avatars.discourse-cdn.com/v4/letter/i/cc9497/32.png) [@Isilder](https://boards.straightdope.com/u/Isilder)\ **Post date:** [September 8, 2014, 12:25pm UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953/4 "2014-09-08T12:25:21Z")
It did happen , and went to court in Darwin, Australia. See > **[Woman orders man to have sex with girl at spearpoint - NZ Herald](https://www.nzherald.co.nz/world/woman-orders-man-to-have-sex-with-girl-at-spearpoint/STCRQCVMN3FR63RR2733LSMZUI/?c_id=2&objectid=10112708)** > > Latest breaking news articles, photos, video, blogs, reviews, analysis, opinion and reader comment from New Zealand and around the World - NZ Herald ---
**Author:** ![dougie\_monty](https://avatars.discourse-cdn.com/v4/letter/d/439d5e/32.png) [@dougie\_monty](https://boards.straightdope.com/u/dougie_monty)\ **Post date:** [September 8, 2014, 2:30pm UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953/5 "2014-09-08T14:30:16Z")
> [@Isilder](#): > > It did happen , and went to court in Darwin, Australia. > See > [Woman orders man to have sex with girl at spearpoint - NZ Herald](http://www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=10112708) I suppose, in the absence of specific American law, the Australian ruling could be used–as persuasive authority, of course. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 8, 2014, 3:02pm UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953/6 "2014-09-08T15:02:46Z")
(1) **ruadh** has this correct. Even a strict liability offense requires a _volitional act_. You need not have intended to commit the crime, but you must have intended the actus. If you fall from a building, land on a child, and penetration results,\* that’s not statutory rape. The same is true of duress; you are not acting on your own volition. (2) Duress isn’t a defense to murder. It doesn’t matter how many lives are involved. See previous thread [here](http://boards.straightdope.com/sdmb/showthread.php?t=731427&highlight=duress). \*Yes, yes, yes, it’s a silly example, but it was the first one I thought of. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [September 9, 2014, 6:21am UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953/7 "2014-09-09T06:21:38Z")
The answer to the first question seems reasonable, at least as an interesting little hair-split arrived at by working backwards, but casuistry in the defense of justice is no crime. The answer to the second seems less so. Does the same unjust reasoning apply to physical necessity without duress? I alluded to the Tragedy Of The Trolley before, so I might as well bring it up in full now: There’s a trolley with bad brakes and a driver with bad breaks. The driver can either turn left, and kill a single person, turn right, and kill ten people, or jump out, and kill thirty people. After it’s all done and the driver’s in court, is there really _no_ way short of jury nullification that the driver _doesn’t_ go to prison, _regardless_ of what they did? ---
**Author:** ![ruadh](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@ruadh](https://boards.straightdope.com/u/ruadh)\ **Post date:** [September 9, 2014, 7:57am UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953/8 "2014-09-09T07:57:29Z")
> [@Derleth](#): > > The answer to the first question seems reasonable, at least as an interesting little hair-split arrived at by working backwards, but casuistry in the defense of justice is no crime. I don’t think it is casuistry. Mens rea is a matter of intent, not motive. If you agree to rob a bank because your wife will be murdered if you don’t, you’re still intending to deprive the bank of its money through the use of force or fear, so you still have the mens rea. It’s just that your motive is to save your wife’s life, not to profit from the crime. > [@](#): > > After it’s all done and the driver’s in court, is there really _no_ way short of jury nullification that the driver _doesn’t_ go to prison, _regardless_ of what they did? In the unlikely event this scenario unfolded in precisely this way, I’d expect prosecutorial discretion to be exercised to prevent it ever going to court in the first place. I know answers like that don’t quite satisfy the desire for judicial theories that fit every conceivable scenario, but that’s life. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [September 9, 2014, 8:17am UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953/9 "2014-09-09T08:17:24Z")
> [@ruadh](#): > > I don’t think it is casuistry. Mens rea is a matter of intent, not motive. If you agree to rob a bank because your wife will be murdered if you don’t, you’re still intending to deprive the bank of its money through the use of force or fear, so you still have the mens rea. It’s just that your motive is to save your wife’s life, not to profit from the crime. So intent is immediate term and motive is understood to be longer-term? That is, you weren’t unconscious while you did the bad act, you were still moving your muscles under your own control, but your ultimate motive was noble and imposed on you by the real bad actor, correct? > [@](#): > > In the unlikely event this scenario unfolded in precisely this way, I’d expect prosecutorial discretion to be exercised to prevent it ever going to court in the first place. I know answers like that don’t quite satisfy the desire for judicial theories that fit every conceivable scenario, but that’s life. “Batman and Superman would never fight. They’re friends.” (Yes, I’m aware Batman has won. Multiple times.) I guess that’s a difference between law and moral philosophy, but sometimes it’s nice to know there’s an actual legal protection between you and a prosecutor who just doesn’t like you. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 9, 2014, 3:05pm UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953/10 "2014-09-09T15:05:11Z")
> [@Derleth](#): > > I alluded to the Tragedy Of The Trolley before, so I might as well bring it up in full now: There’s a trolley with bad brakes and a driver with bad breaks. The driver can either turn left, and kill a single person, turn right, and kill ten people, or jump out, and kill thirty people. After it’s all done and the driver’s in court, is there really _no_ way short of jury nullification that the driver _doesn’t_ go to prison, _regardless_ of what they did? Assuming the driver did not act negligently, his action is not the proximate cause of the deaths. So he’s not guilty of anything. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [September 9, 2014, 3:40pm UTC](https://boards.straightdope.com/t/two-questions-about-duress-necessity-legal/695953/11 "2014-09-09T15:40:58Z")
> [@Derleth](#): > > So intent is immediate term and motive is understood to be longer-term? That is, you weren’t unconscious while you did the bad act, you were still moving your muscles under your own control, but your ultimate motive was noble and imposed on you by the real bad actor, correct? Intent is pretty narrow, but it isn’t a totally blind test. With a crime like robbery or (first degree) murder, which we call “specific intent” crimes, you have to intend both the physical act of controlling your muscles, but also a particular result. You have to intend to take away their money in the robbery-under-duress situation, for instance. This sets up one of a few ways to distinguish the trolley situation from the “kill this guy or your family dies” situation. If you’re driving the trolley and your choices are turn left, turn right or do nothing, none of those choices result in not killing anyone. No one has said to you that if you will simply kill that person standing over to the left, they will spare the lives of all the other people. If you turn the wheel to the left, you’re not turning it to the left to accomplish the result of killing the one person over there; you’re turning it to the left to avoid all the other people. Meanwhile, if Bullied takes out a gun and shoots a person on demand because he “intends” to avoid getting his family killed, he’s still acting with the intent to accomplish the death of that other poor bastard. Perhaps, even though it isn’t the hypothetical, the trolley driver could turn the wheel to the left but just barely miss the one person. He’d be fine with that; it isn’t contrary to his intent. But if Bullied shoots and misses, he hasn’t accomplished his goal. He intends to kill the person. It’s the difference between the requirement that you accomplish the unlawful killing and the requirement that you perform a task that is probably or definitely going to result in deaths that changes the scenario.