NCJ Number
57841
Date Published
1978
Length
48 pages
Annotation
THIS WORKING PAPER FOR THE LAW REFORM COMMISSION OF AUSTRALIA TRACES THE HISTORY OF THE CONCEPTS OF DURESS, COERCION, AND NECESSITY AND COMPARES THEIR USE IN THE CRIMINAL CODES OF ENGLAND, INDIA, EUROPE, AND THE U.S.A.
Abstract
WHILE ALL THREE TERMS ARE USED TO DEFEND THE COMMISSION OF A CRIMINAL ACT, UNDER THE CLAIM OF UNBEARABLE PRESSURE, AUSTRALIAN LAW MAKES A DISTINCTION BETWEEN COMPULSION APPLIED BY A HUMAN AGENCY (DURESS) AND THAT BROUGHT ABOUT BY NATURAL FORCES OR CIRCUMSTANCES (NECESSITY). COERCION REFERS TO COMPULSION WHICH ARISES IN THE CONTEXT OF A MARRIAGE RELATIONSHIP. THESE CONCEPTS HAVE HAD A CONFUSING HISTORY BOTH IN ENGLISH COMMON LAW AND IN THE STATUTORY LAWS OF GREAT BRITAIN AND AUSTRALIA. CIRCUMSTANCES WHICH HAVE BEEN ADMITTED AS DURESS IN ONE CASE HAVE BEEN DENIED IN ANOTHER. IN THE UNITED STATES, THE DEFENSE OF DURESS CANNOT BE USED TO JUSTIFY MURDER OR ATTEMPTED MURDER. FOR LESSER CRIMES THE DURESS MUST BE EXTREME, EITHER THE THREAT OF DEATH OR THE THREAT OF SERIOUS BODILY HARM. THIS IS THE STAND TAKEN BY THE MODEL PENAL CODE OF THE AMERICAN LAW INSTITUTE, THE DRAFT U.S. FEDERAL CODE, AS WELL AS THE DRAFT CRIMINAL CODE FOR THE AUSTRALIAN TERRITORIES AND THE RECOMMENDED PROVISIONS ISSUED BY THE LAW COMMISSION OF ENGLAND. COERCION IS NOT ALLOWED AS A DEFENSE IN CASES OF TREASON OR MURDER, BUT SHOULD BE ADMITTED FOR ANY LESSER CRIME DUE TO THE EXTREME DEPENDENCE OF MANY WOMEN ON THEIR HUSBANDS FOR SUPPORT. NECESSITY IS VARIOUSLY DEFINED IN THE CRIMINAL CODES OF INDIA, ENGLAND, CYPRUS, AUSTRALIA, THE VARIOUS STATES OF THE UNITED STATES, AND THE GERMAN PENAL CODE OF 1871. THESE CODES ARE COMPARED. IT IS RECOMMENDED THAT THIS DEFENSE BE USED TO REDUCE MURDER TO MANSLAUGHTER AND BE CONSIDERED A MITIGATING CIRCUMSTANCE IN OTHER CRIMES. EXTENSIVE REFERENCES ARE APPENDED. (GLR)