Abstract

http://ssrn.com/abstract=697481
 
 

Footnotes (19)



 


 



Duress is Not a Justification


Kyron Huigens


Cardozo Law School


Ohio State Journal of Criminal Law, Vol. 2, No. 3, 2004

Abstract:     
In this response to Peter Westen's and James Mangiafico's article, The Criminal Defense of Duress: A Justification, Not An Excuse - And Why It Matters, Professor Huigens argues that Westen and Mangiafico (W&M)do not demonstrate that duress is a justification in the sense that they apparently mean: that duress is in all instances a justification and never an excuse. W&M argue that duress is a justification because, seen in context, a human threat is more grave than a natural threat, so that avoiding such a threat is a lesser evil. But there is nothing remarkable in this, because the facts that will support a duress defense often will also support a justification argument. In the framing of a justification argument, we always contextualize by allowing the defendant to argue both that he was justified and that he was reasonable even if he was mistaken about being justified. This does not preclude the defendant from making a third argument that, even if he was not actually justified, and even if he was at fault in mistakenly believing that he was justified, he still ought to be acquitted. The conditions of responsibility are not met where he makes a wrong choice under circumstances of hard choice, and he is not a fair candidate for punishment when most of those who would presume to punish him lack the moral right to do so, because they would have made the same wrong choice that he did in those circumstances.

Number of Pages in PDF File: 13

Keywords: Duress, Justification, Excuse

Accepted Paper Series





Download This Paper

Date posted: April 4, 2005  

Suggested Citation

Huigens, Kyron, Duress is Not a Justification. Ohio State Journal of Criminal Law, Vol. 2, No. 3, 2004. Available at SSRN: http://ssrn.com/abstract=697481

Contact Information

Kyron Huigens (Contact Author)
Cardozo Law School ( email )
55 Fifth Ave.
New York, NY 10003
United States
212-790-0404 (Phone)
212-790-0205 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 1,646
Downloads: 171
Download Rank: 104,824
Footnotes:  19

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.297 seconds