| Abstract: | ABSTRACT Not all crimes require mens rea, but all serious ones do. Crudely the requirement is that the defendant be able to take responsibility for the actus reus of which he is accused. What must be implied by this is essentially that the agent retain control of his actions. It is unjust to punish actions which are outside of the agent's control since such punishment cannot deter and is, arguably, pointless.
Duress does not remove an agent's control of his actions. This does not mean that actions performed under duress should be viewed as fully intentional. For though the agent foresees and wishes for the result of his action performed under duress, it is wished for as the best option out of a range of alternatives manipulated by the one who makes the threats which constitute the duress. The agent is responsible for his choice, but not for what is available for him to choose. He has an obligation to do what is best in the circumstances and should not be blamed if that would, in other circumstances, be accounted criminal. |
