DURESS

Duress amounts to the use of coercion, force, false imprisonment, threats, or psychological

pressure to get someone to act in a way he does not wish, or which is not in his best interest.
Compelling someone to act in such a manner is against the law, and whatever they agree to
under duress is invalid in the eyes of the law.
Duress comes in several forms, but it involves a purposeful use of threat or force to convince
someone to sign the contract, or to engage in some activity. This type of coercion may be
either physical or psychological, which ultimately makes the individual feel he has no option
left, but to sign the contract. Although some forms of duress may be challenging to prove in a
court of law, the use of physical force, or believable threat of physical harm, if proven,
quickly results in nullification of the contract. It may also result in criminal charges against
the perpetrator.

ACT TO WHICH A PERSON IS COMPELLED BY THREATS

Except murder, and offences against the state punishable with death, nothing is an offence
which is done by a person who is compelled to do it by threats, which, at the time of doing it,
reasonable cause the apprehension that instant death to person will other wise be the
consequence: provided the person doing the act did not of his own accord, or form a
reasonable apprehension of harm to himself short of instant death, place himself in the
situation by which he became subject to such constraint

SCOPE OF DURESS
The conceptual framework for allowing a duress defense generally stems from the laudable
notion that one should not be forced into contracting with another, but should come to the
bargain voluntarily. Volition is the touchstone of the freedom to contract. At common law,
when an agreement is the product of coercion and not entered into voluntarily, it was
considered void ab initio.

LIMITATION OF DURESS

The defense of necessity, like duress, involves compulsion to act unlawfully in order to avoid
a threat of immediate harm. Both defenses fail if the defendant had a reasonable alternative to
violating the law. For the defense to succeed, the harm the defendant causes can't be greater
than the harm he prevents.
INTRODUCTION
The Criminal law has long recognized the defenses of necessity and duress. Generally,

persons have a defense of necessity if, due to natural events, they have no alternative but to
behave in a manner that satisfies the definition of an offense. Persons have a defense of
duress if, due to human threats, they behave in a manner.

ACT DONE UNDER DURESS

Section 94 exempts a man from criminal liability in respect of an act committed by him under
compulsion of duress. This is founded on the well-known maxim, actus ne invitio factus est
nisi actus,
The defense is subject to two exceptions namely (1) murder, and (2) waging war against the
government of India, which is punishable with death, where compulsion cannot be pleaded as
a defense to a criminal charge. The exemptions are based on the ground that no one has a
right to take another life in order to save his own life and the state has a right to ensure its
own preservation by providing deterrent punishment pains and penalties.
The English law, on the other hand, permits a man to save his life at the expense of the state

INGREDIENTS
It is not every threat of injury that will excuse a man from punishment. The threat in order to
attract the benfit of section 94 must be of instant death to a person compelled to commit the
offence, and that the person so threatened should not have placed himself in that situation of
his own accord. For instance, a man on the point of starvation cannot plead his hunger as an
excuse for committing theft.
The accused must show that he did not of his own accord expose himself to the constraint,
that the fear which promoted his action was the fear of instant death, and that the accused had
no option but to die or to accomplish the directed by assilants.

AS A DEFENSE

THE CRIMINAL DEFENCE OF DURESS

The defense of duress is available to criminal defendants who were forced to commit a crime
under threat of violence or because of the actual use of violence. In these circumstances, the
courts have determined that a defendant was deprived of the free will to make a decision to
commit the crime and thus should not be held legally responsible for it. The defense of duress
has four elements. First, there must a threat of death or serious bodily harm. Second, that
threat must be immediate or imminent. Third, the threat must create a reasonable fear in the
defendant. Fourth, there must be no reasonable means for the defendant to escape the threat
except by committing the crime.

THREAT OF HARM
In order for a duress defense to be successful, the defendant must have experienced a serious
threat, usually rising to at least the level of significant bodily harm. This threat, however,
does not have to be directed at the defendant personally. Instead, most courts also allow the
defense to be used if the threats are made against others with whom the defendant has a
significant relationship, such as a spouse or child. Thus, a duress defense could arise where a
defendant is told that if he does not commit the crime, his wife will be killed.
Additionally, the threat of harm may be conveyed by words or actions. For instance, the
defendant may be told that he will be killed or injured unless he completes the crime, or he
may have a gun placed to his head without any words being spoken. Either of these will be
sufficient for purposes of duress. Most important to establishing a duress defense, however, is
the requirement that the threat is immediate and imminent. This means that the criminal
defendant must believe that the threat will be immediately acted on if he or she does not
comply. Thus, a threat made several days before will not be sufficient for purposes of duress,
nor will a threat that the defendant will be harmed in the next month, year, or sometime in the
future.

REASONABLE FEAR
In order for a criminal defendant to rely on the defense of duress, it is not enough that a threat
occurred. Instead, the criminal defendant must also have had a reasonable and objective fear
that the threat would be acted upon. This requires that a reasonable person in similar
circumstances would also have a fear of death or bodily injury. For example, if his co-
conspirator jokingly told a defendant that he had better hold up his end of the bargain or “I’ll
kill you,” this would probably not be sufficient to establish duress, since the threats were
objectively not genuine. Similarly, if a defendant has no reason to believe that threats will be
followed through on, his or her fear would not be reasonable.
NO MEANS OF ESCAPE
Finally, a duress defense will only apply if the criminal defendant had no reasonable means
of escaping the situation. If the defendant could leave the scene of the crime, overcome the
person threatening him or her, or otherwise avoid the situation leading to duress, courts have
held that the duress defense does not apply because the defendant could have, and should
have, escaped from the situation.

JUSTIFICATION OR EXCUSE
Justifications admit that conduct satisfies the definition of an offense but the conduct is not
wrongful since such conduct is justifiable in the totality of circumstances. Justifications focus
on acts. Thus, if an act is justifiable for one person, it is justifiable for anyone else in the same
circumstances. For example, the justification of self-defense is available to all actors in the
same circumstances.

Excuses, on the other hand, admit that an actor's conduct is wrongful but we cannot properly
hold the actor responsible for his behavior. Excuses focus on the actor. If conduct is
excusable, only the particular person is excused. For example, an insanity defense is not
available to all actors in similar circumstances.The absence of a reasonable alternative
implies that conduct is at least permissive because it produces greater net value than any
alternative. Prohibiting the conduct would not prevent net harm. The argument addresses the
rightness and wrongness of the act, not the responsibility of the individual. Thus, absence of a
reasonable alter- native should be treated as a justification.

Fletcher contends that while necessity is a justification, duress must be an excuse. His
reasoning hinges on the several undesirable consequences that would result if duress was a
justification. First, one would never be justified in resisting a person coerced into action.
Justified conduct is lawful and, therefore, resistance is inappropriate

For example, if Collins is coerced into robbing a bank, the bank teller and guard would not be
justified in resisting Collins. Second, others would be justified in assisting Collins. And third,
those coercing Collins might not be guilty as accessories because one can- not is guilty as an
accessory to justifiable conduct.

However, these arguments are not persuasive. First, justification does not
necessarily establish the inappropriateness of resistance or interference.
Justification shows only that conduct is not wrongful and that one has no
duty to refrain from engaging in such conduct. The sole conclusion is that
the conduct is permissible other must also have a correlative duty not to
interfere.