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30 S. Cal. L. Rev. 313 (1956-1957)
Duress, Free Will and the Criminal Law

handle is hein.journals/scal30 and id is 321 raw text is: 19571 DURESS, FREE WILL AND THE CRIMINAL LAW Lawrence Newman* and Lawrence Weitzer** I. INTRODUCTION Legal responsibility, be it civil or criminal, implies freedom. To make a contract in law requires the free acts of the participants, and the doing of a socially reprehensible act is legally excusable, where the actor was not a free agent. We find, therefore, that where that most precious of all com- modities, free will, is stolen, the law has hastened to erect its doctrine of duress to mark the larceny. Criminal duress has, at its heart, the principle of freedom. The criminal law, wisely or not, has postulated for itself a world of free-willed agents and has fixed responsibility for action upon most classes of actors,' except those who have acted under compulsion. The merits of such an attitude are clear. If a person commits an act under compulsion, responsibility for the act cannot be ascribed to him since, in effect, it was not his own desire, or motivation, or will, which led to the act. Punishment of the actor would be misdirected and futile since it would deter neither him nor others, should it be the case that all were equally compelled to do acts outside of their own control. Thus, the law has reasoned that where it can be shown that a man acted under a compulsion which deprived him of his free will, such an individual would not be held responsible for his act. This, in essence, is the thinking that lies behind the formulation of the criminal duress doctrine. Having determined upon the duress principle, the law did not find it difficult to identify those series of human movements which would be subject to this defense. Treason, murder, rape, robbery, kidnapping, arson, bigamy, forgery, assault and battery, perjury-these were proof that society was not lacking in imagination or complexity. The virtue of maid- enhood, the sanctity of person, group and property, the reverence for *A.B., 1952, Dartmouth College; LL.B., 1955, Yale University. Clerk to Judge Lawrence E. Walsh, U. S. District Court, Southern District, New York. **B.A., 1952, Brooklyn College; LLB. 1955, Yale University. 'The law does not hold insane persons or those under a certain age responsible for their acts. A Minnesota statute declares that the presumption of responsibility includes all indi- viduals except, (1) children under seven years of age, (2) idiots, imbeciles, lunatics and insane persons who are incapable. MINN. STAT. § 610.08 (1953). A California statute adds all persons are capable of committing crimes except those belonging to the following classes: (1) children under 14, in the absence of dear proof that at the time of the act charged they knew its wrongfulness, (2) idiots, (3) lunatics and insane persons, (4) persons who com- mitted the act or made the omission charged under an ignorance or mistake of fact, which disproves criminal intent, (5) persons acting without being conscious thereof, (6) persons acting through misfortune or accident where there is no evil design, intention or culpable negligence, (7) married women (except for felonies) acting under threats, commands or coercion of their hubsands. CAL. PENAL CODE § 26 (1956). Cf. FLA. STAT. ANN. § 836-05 (1944); IDAHO CODE §§ 18-201 (1947); ILL. REV. STAT. §§ 500-595 (1949); MONT. REv. CODES ANN. §§ 94-201 (1947); N.J. REv. STAT. tit. 2, § 2:103-3 (1937); N.Y. PENAL CODE §859 (1944); OKLA. STAT. ANN. tit. 21, §152(7), §155 (1937); R.I. GEN. LAWS ANN. c. 606, §17 (1938).

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