20. Duress and BWS

Question 1

Duress and BWS

Answer 1

• Courts much more wary about extended BWS as a defense in duress

Question 2

State v. BH

Answer 2

• Abusive husband forced her to have sex with her 7 year old stepson, argued under duress
• Elements of duress claim
  o 1. Defendant actually believed in and be frightened by the likelihood of the threatened harm, subjective
   Admitted for this (support honest belief of danger)
  o 2. Level of resistance to the particular threat must meet community standards of reasonableness, objective
   Cannot be used in this, it’s about if a person of reasonable firmness in that situation be able to resist threat from her abuser
  o 3. Cannot have recklessly placed him/herself in the situation in which it was probable that he/she would be subjected to duress
   BWS testimony can be admitted for this (explain why stayed)
• Does not rewrite Kelly
  o Self-defense – would a reasonable person in same/similar circumstances have perceived threat
  o Duress – would the person of reasonable firmness in the same/similar circumstances have succumbed to the threat
  o *Different reasonableness POV as to assess if it’s a defense

Question 3

Don’t allow a defense…

Answer 3

in situations where the defendant’s choice is constrained by circumstances other than personal threats of harm – unless the harm caused by the offense is less than that which would have occurred in its absence