Legal Defense of Duress in a Military Court-Martial
Military court-martial lawyers
The defense of accident is defined by R.C.M. 916(f).
The defense of duress exists when the accused commits the offense because of a well-grounded apprehension of immediate death or serious bodily harm. R.C.M. 916(h). Financial hardship, no matter how extreme, does not amount to duress under military law. United States v. Alomarestrada, 39 M.J. 1068 (A.C.M.R. 1994).
Duress is never a defense to homicide or to disobedience of valid military orders requiring performance of dangerous military duty. R.C.M. 916(h); The court in United States v. Talty, 17 M.J. 1127 (N.M.C.M.R. 1984) held, where sailor refused the order of his commander to enter the reactor chamber of a nuclear submarine to perform maintenance, based on his belief that radiation from the reactor could harm him. Reasonable opportunity to seek assistance negates a reasonable apprehension that another innocent person would immediately suffer death or serious bodily injury. United States v. Vasquez, 48 M.J. 426 (C.A.A.F. 1998).
Legal Defenses Available in a Military Court-Martial
- Special Defenses & Other Defenses
- Accident Defense
- Defective causation & Intervening cause
- Duress or Coercion
- Inability and Impossibility
- Defense of another
- Necessity or Justification
- Mistaken belief, mistake of fact, or Ignorance
- Voluntary abandonment
- Statute of Limitations
- Former jeopardy – Double Jeopardy
- Miscellaneous Defenses
Reasonable apprehension is fear sufficient to cause a person of ordinary fortitude and courage to yield. The court in United States v. Logan, 47 C.M.R. 1 (C.M.A. 1973) held, reasonable fear did not exist where accused was in Korea and threats to harm his family in CONUS were made by local Korean nationals. The court in United States v. Olson, 22 C.M.R. 250 (C.M.A. 1957) held, prisoner-of-war who wrote anti-American articles while incarcerated was denied the duress instruction at his court-martial for aiding the enemy when the only evidence of coercion brought to bear on him consisted of veiled threats of future possible mistreatment). The court in United States v. Palus, 13 M.J. 179 (C.M.A. 1982) held, inadequate providency inquiry required reversal where accused in Germany stated he feared for his family’s safety when his wife was harassed in Las Vegas about his gambling debts.
Mistake of Fact as a Defense in Sexual Assault Cases
The military does not recognize the rule that one who recklessly or intentionally placed himself in a situation in which it was reasonably foreseeable that he or she would be subjected to coercion is not entitled to the defense of duress. United States v. Jemmings, 50 C.M.R. 247 (A.C.M.R. 1975), rev’d, 1 M.J. 414 (C.M.A. 1976). The defense requires fear of immediate death or great bodily harm and no reasonable opportunity to avoid committing the harm. See generally United States v. Barnes, 12 M.J. 779 (A.C.M.R. 1981).
The defense of duress is an affirmative defense
For the defense of duress to exist, the accused must not only fear immediate death or great bodily harm but also have no reasonable opportunity to avoid committing the crime. R.C.M. 916(h). The court in United States v. Banks, 37 M.J. 700 (A.C.M.R. 1993) held, the defense of duress to charge of AWOL was not raised by accused’s testimony that he failed to return from leave on time because of the serious illness of his mother. The court in United States v. Vasquez, 48 M.J. 426 (C.A.A.F. 1998) held, the duress defense was not raised in bigamy case where accused married Turkish woman three days after being caught with her and authorities threatened to put them in jail.
The immediacy element of the defense is designed to encourage individuals promptly to report threats rather than breaking the law themselves. The court in United States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976) held, the threat to inflict harm the next day held sufficient to activate defense where accused’s company commander had previously refused to assist.
The court in United States v. Biscoe, 47 M.J. 398 (C.A.A.F. 1998) held, sexual harassment did not constitute duress when victim conceded during providency that she did not fear for her life or the lives of her children when she went AWOL. The court in United States v. Vasquez, 48 M.J. 426 (C.A.A.F. 1998) held, in three days before threat to jail him and Turkish woman and his bigamous marriage, the accused could have sought legal assistance, sought assistance from the consulate, or sought help from his chain of command.
In the case of United States v. Le, 59 M.J. 859 (A. Ct. Crim. App. 2004), the appellant pled guilty to desertion. During his providence inquiry, appellant stated his primary reason for leaving was fear that his girlfriend’s ex-boyfriend, a purported gang member, would kill or harm him. In response to the military judge’s questions, appellant repeatedly said he did not fear “immediate” death or serious bodily injury, but he did not know when “they are going to come for me.”
The appeals court held that appellant’s guilty plea was improvident because he raised the defense of duress, and the military judge failed to resolve the apparent inconsistency. Appellant’s response that he did not fear immediate harm was merely a recitation of a conclusion of law. Duress has long been recognized as a defense to absence offenses; however, it only applies so long as the accused surrenders at the earliest possible opportunity. Appellant’s claim of duress could only apply while his reasonably grounded fear still existed. Once away from the source of the fear, the threat lost its coercive force.
Unlawful threats or economic pressure (economic duress)
In United States v. Barnes, 60 M.J. 950 (N-M. Ct. Crim. App. 2005), the appellant pled guilty to a 52 month absence terminated by apprehension. Appellant claimed that he was beaten and threatened regularly and this contributed to his absence. HELD: The military judge erred when he granted a motion in limine to preclude the affirmative defense of duress, after ruling that the offense of desertion and the lesser included offense of unauthorized absence were not complete when appellant left the ship with the intent to remain away.
For the defense of duress to apply, an innocent person must be endangered. R.C.M. 916(h). The court in United States v. Pinkston, 39 C.M.R. 261 (C.M.A. 1969) held, the threat against fiancée and illegitimate child can raise the defense of duress. The court in United States v. Jemmings, 1 M.J. 414 (C.M.A. 1976) held, the threat against accused’s children can raise the defense of duress.
The accused’s use of the duress defense creates an opportunity for the prosecution to introduce evidence of his other voluntary crimes in order to rebut the defense. United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977); see also MRE 404(b).
The Nexus Requirement.
A nexus between the threat and the crime committed must exist. United States v. Barnes, 12 M.J. 779 (A.C.M.R. 1981) (duress was not available to an accused who robbed a taxi driver where the threat was only to force payment of a debt; the coercion must be to commit an unlaw criminal act); see also United States v. Banks, 37 M.J. 700 (A.C.M.R. 1993) (defense of duress to charge of AWOL was not raised by accused’s testimony that he failed to return from leave on time because of the serious illness of his mother); United States v. Biscoe, 47 M.J. 398 (C.A.A.F. 1998) (allegation of sexual harassment alone, absent threat of death or serious bodily injury, did not raise duress as a defense to AWOL).
The Legal Defense Of Duress
In criminal law, coercion is a legal defense in which an accused person claims that he or she has committed an unlawful act because he or she has been threatened or coerced by another party. It is a proactive defense in most jurisdictions if the defendant claims to have committed a crime to avoid immediate threat of death or serious harm. The legal defense of duress can be used as a defense for any situation in which someone commits a crime because there is an immediate threat to someone else’s life.
The defense of duress or coercion arises when the threat or actual use of physical force a defendant causes to do something that would cause a reasonable person to commit a crime. The prosecution has the burden of unequivocally proving the guilt of an accused offender, while the person attempting to make self-defense has only the burden of proving by a preponderance of the evidence that he or she has made himself or herself punishable by acts of violence or threats of violence. An alleged perpetrator cannot invoke the defense of coercion if: (1) the alleged perpetrator himself is placed in a situation where he is likely to be subject to coercion and (2) the accused acts under the command or persuasion of his spouse; and (3) the criminal conduct involves violence, threat or violence which renders the accused incapable of withstanding the pressure beyond a reasonable degree of firmness.
Duress is an affirmative defense to an unlawful criminal act
For example, if someone says, “I will beat you tomorrow if you do not steal this jacket from me,” it is not possible to make a coercive defense if the jacket has been stolen. Likewise, for example, if the perpetrator jumps into the defendant’s car and threatens him with a plastic toy knife that looks like a toy, the defendant cannot use “coercive defense.” Similarly, if, for example, a person holds a gun to his head while driving and asks him to flee from the police, the threat of coercion can be used to defend the accused to avoid prosecution.
This defense does not allow the accused to put himself in a dangerous situation with a risk of death or injury. The risk of damage does not have to be immediate or serious to be considered a coercive situation. However, if circumstances lead to a situation in which the accused must break the law to prevent harm, this defense must be in play.
In criminal law, no action can prevent an actor from establishing a defense called coercion. The defense of coercion is not possible in cases involving criminal offenses against a person, such as battery, robbery, or murder. It is important to note that the Statute goes so far that people who deliberately put themselves in a situation where it is foreseeable that they will be subject to coercion cannot claim a defense.
When coercion is formulated as a threat to the accused, most courts say that the defense is only available when the threat affects other persons, such as the defendant’s spouse or children. To succeed under pressure from the defense, the accused must show that there is no other way to escape the threat of committing the crime. The defense works best when the defendant is not afraid to carry out the threat.
Defending the necessity involves committing an illegal act to prevent the threat to another person. The court must convince the plaintiff that there was no way to escape unscathed and commit the unlawful act and that coercion cannot be used as a defense to commit the crime. Defending the necessity of coercion implies a compulsion to act to avoid a threat of immediate harm.
Coercion and coercion One of the four most important justifications in terms of jurisprudence and possible legal defense is the defense of necessity in which the accused says that he or she should not be held liable for an act that is against the law but was carried out out of immediate fear of injury.
An essential component of a duress defense is the requirement of immediacy, which requires a defendant to exercise coercion only if he or she is directly threatened with death or injury. The law requires that an act be performed under duress in the face of a well-founded fear or threat that it will be carried out. Coercive measures are used when a person is threatened with physical violence by another person or family member, even if the other person or family member has not committed the crime.
If a person commits a crime that threatens his or her life or that of another person or a person close to him or her, he or she might be able to use coercion as a defense against a criminal complaint. For example, if you are accused of a crime and were coerced to threaten a third person you love and the threat has led to the crime, you may have a defense against your accusation: the defense of coercion. However, note that coercion is not an available defense for all crimes or charges.
In most cases involving coercive defense, the government cannot make a person who may have information about the events leading to the suit or a person who is suspected of having put the defendant under a forceful act as witnesses. For coercion to act as a defense, it must be proven that the accused has coerced the accused to commit a crime, even if the accused has not acted with any intention to break the law. The defense can acquit the defendant from criminal liability if the threats are fraudulent, the claims are potentially abusive, or ask the court to establish strict rules for the use of the defense, including the requirement that the defendant must prove that there is coercion.