Excusing Behavior: Reclassifying the Federal Common Law Defenses of Duress and Necessity Relying on the Victim’s Role (DRAFT)

This article presents a theory for classifying the affirmative defenses of duress and necessity that focuses on the role of the victim in the criminal act and ultimately categorizes both defenses as excused acts. Necessity typically involves a defendant arguing that he committed the crime in order to avoid a greater evil created by natural forces. Duress usually entails a defendant arguing that he committed the crime in order to avoid unlawful physical threats made by a third party. Most scholars categorize duress as an excuse (wrongful conduct where the defendant is still found not culpable based upon mitigating circumstances) and necessity as a justification (encouraged or tolerated conduct where the defendant is found not culpable), but their focus has been on state law and related jurisprudence. My article consists of two parts. First, I survey how federal courts have treated duress and necessity. I show that federal courts have applied similar standards both during the liability and sentencing phases of trial. In fact, some federal courts have adopted a consolidated definition for these affirmative defenses. This treatment suggests that duress and necessity should be classified in the same way. The second part of the article focuses on the conceptual framework behind classifying these defenses. In light of federal jurisprudence on the subject, I critically examine the five main theories used to distinguish excused from justified actions. Scholars typically focus their attention on the defendant and what he does. The prominent theories include appealing to the type of harm the defendant causes, his particular state of mind, whether he deserves aid from another, whether his behavior conforms to a public norm, or whether his actions were warranted. However, none of these approaches provides a comprehensive methodology that accurately captures the nature of duress and necessity. Nor do any of them preserve our intuitions when applied to affirmative defenses such as self-defense and insanity. The problem is that theorists have focused too heavily on the defendant. In doing so, they have left out the victim—the central figure who suffers the harm. My article seeks to change this defendant-oriented perspective when it comes to classifying duress and necessity. In the final part of the article, I outline an alternative theory that focuses on the victim’s role in the crime. As the person who paid the price for the defendant’s conduct, the victim should be our focus when morally judging what the defendant did. Where the victim played a direct role in what happened, the defendant’s action is better classified as a justification, and where the victim innocently suffered, the defendant’s action is better classified as an excuse. This focus on the victim’s culpability better captures the intuitive difference between excuse and justification and explains why duress and necessity (particularly, as used by federal courts) should be classified together as excused acts