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

Scholars have long debated the best way to classify the affirmative defenses of necessity and duress. 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 (warranted or encouraged conduct where the defendant is found not culpable), but their focus has been on state law and related jurisprudence. This Article makes an original contribution to the literature by presenting a theory for classifying these defenses that focuses entirely on the role of the victim in the criminal act and ultimately categorizes both defenses as excused acts. The Article consists of two parts. First, it surveys how federal courts have treated duress and necessity. They have applied similar standards both during the liability and sentencing phases of trial. Some courts actually 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, we need to reexamine the methods criminal theorists have used to distinguish necessity and duress. Scholars typically focus their attention on the defendant and what he does. The prominent theories include appealing tothe 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 are warranted. However, none of these five 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 other 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. This Article seeks to change this defendant-oriented perspective when it comes to classifying duress and necessity. The final part of the Article outlines an alternative theory that focuses entirely on the victim’s role in the crime. As the person who was harmed by the defendant’s conduct, the victim should be our focus when deciding whether the defendant’s conduct constitutes an excused or justified act. 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 more accurately 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