LAW OF DURESS IN ISLAMIC LAW AND COMMON LAW: A ...

Islamic Studies, 30:3 (1991)
3.) However, threats to property or reputation are adpiribk under seaion 3.02 (Choice
of Evils). And see Commonwealth v. Reffitt, 149 Ky. 300 148 S.W. 48 (1912). recognising
threats to property or reputation.
Koonh v. State, 204 So. 2d. 224 (Fla. App., I%?, State v. Nodine, 198 Ore. 679,259 p.
2d. 1056 (1953); State v. Torano, 74 N.J. 421, 378 A. 2d 755, 762 (lm); y, Orchard,
Defeme of Cornphion, 111-112, for the law in Newzedand. Several writers have argued
that threats to strangers should be rewpnised. Wan and Scott, Hadbook, pp. 1W1061,
Clark and Marshall, Treotire, W, Wave, CriminrJ Low, pp. 436-438; Donaclly. Goldstein
and Schwark, Criminol Law (1983), p. 662; and Bishop. Criminal Imc: p. 207.
MPC, Comment 3. However, a British case R.V. Hudron [I9711 2. Q.B. 202.2 All E.R.
244, has allowed a defence of durcss although the threatened harm was not immediate.
See, note 44 above but see, State v. Toscano, 74 N.J. 421,378 A. 2d 755,762 (19?7), stating
that under certain circumstances the commiseion of minor crimes should be excusable even
if the threat is not one of death or serious bodily injury. Also see, Orehard, Defmce of
Compulsion, p. 111, discussing cases that imply that the threat required should vary with
the seriousness of the harm amunitted. K.J.M. Smith. "Duress-the Role of the Reasonably
Steadfast Man," 98 L.Q. Rrv. 347. 351 (1982), argues that issues of praportionality limits
should be a matter for the legislature because matters of policy such as this should not be
left to juries.
Newman and Weitzer, "Duress, Free Will." P. 331; also see, Williams, Criminal Law; The
General Part, sec. 246 (2nd ed. 1%1).
MPC, m. 209 comment 2, p. 374.
Section 2.09; (1) it is an affirmative defena that Ihe actor en& in the amduct drarged
to constitute an offense because he was coerced to do so by tbe urt of or a that to use
unlawful force against his person or the person of another, that a person of reasonable
firmness in hi situation would have been unable to resist.
(2) The defena provided by the Section is unavailable if the actor recklessly placed hidlf
in a situation in which it was probable that he would be subjected to duresr. Ibe defence
is also unavailable if he was negligent in placing himaelf in such a situation, whenever
negligence suf6ces to establish culpability for the offense charge.
(3) It is not a defence that a woman acted on the command of her husband, unksc she
acted under such coercion as would establish a defence under this don. presumption
that a woman acting in the presence of her husband is a~rced is abolished.]
(4) When the conduct of the actor would otherwire be justifiable under Sectioa 3.02, this
Seaion does not preclude such defence.
MPC, at comment 3, p. 375. 'Ibe reasonablenes test adopted by the MPC seems to be the
majority position in the modem criminal Common law. MPC. Id., pp. 376-378. Several
commentators have suppolted the reasonablener standard. See, Milgate. "Duress and the
Criminal Law: Another Aboutturn by the House of Lords," 47 CMlbridge L.J.61.67 (1988);
Dennis, "Duress, Murder," pp. 232-235; Sornarajah, "Commonwealth Criminal Law," pp.
665-667.
MPC, Comment 3, p. 375.
Seetion3.OLstata:(l)Coaductthattheactorbe~~tobe~toavoidahsrmor
evil to hbdforto.notha kju&hbk, provided tIut
(c) a k@ddvc puposc to exdude the jurtidiatioa chimed does aot otkwk
PMY w.
As note at noted 49 above, the choice of evils doctrine musually requires that
that comes fmm natural causes. Ibe Model Pmd Codc rej- that position.