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test1 028 (Side 28)Defenses to unauthorized absence. Duress

  1. Duress or coercion is a reasonably grounded fear on the part of an actor that he or another innocent person would be immediately killed or would immediately suffer serious bodily injury if he did not commit the act. Duress is a defense to all offenses except where the accused kills an innocent person. R.C.M. 916(h). United States v. Hullum , 15 M.J. 261 (C.M.A. 1983) (accused’s absence may be excused, if he left because his life was endangered).
  2. The defense of duress is not limited to those circumstances where the accused feels that he personally is going to immediately be killed or suffer serious bodily injury. United States v. Jemmings , 1 M.J. 414 (C.M.A. 1976) (accused pled guilty to housebreaking and, in the providence inquiry, he testified that he committed the act because he was scared that something would happen to his family if he did not); see also United States v. Palus , 13 M.J. 179 (C.M.A. 1982) (reversing conviction, where accused wrote bad checks to cover debts because he feared for his wife’s safety, because evidence raised the duress defense).
  3. The need of a service member to absent himself from a perilous situation at his duty station in order to find a safer place from threatened injury is not normally a good defense to AWOL. See United States v. Wilson , 30 C.M.R. 630 (N.B.R. 1960) (accused went AWOL because another service member threatened his life; but Board of Review affirmed the conviction because he did not eliminate the threat by going AWOL). But see United States v. Hullum , 15 M.J. 261 (C.M.A. 1983) (accused’s absence may be excused, if he left because his life was endangered); United States v. Roberts , 15 M.J. 106 (C.M.A. 1983) (summary disposition) (finding that sexual harassment and immediate threat to the physical safety of the accused’s wife raised the defense of duress to an unauthorized absence).
  4. Although sexual harassment may, in certain circumstances, be a defense to anunauthorized absence, it did not constitute duress when the second lieutenant conceded during the providence inquiry that she did not reasonably fear imminent death or serious bodily injury of her children when she went AWOL. United States v. Biscoe , 47 M.J. 398 (C.A.A.F. 1998).
  5. An accused’s fear that work to which he was assigned in the mess hall wouldaggravate his eye injury and commander’s causing accused to be evicted forcibly from his off-post residence did not constitute the affirmative defense of duress in an AWOL case, because accused could not reasonably fear death or serious bodily injury. United States v. Guzman , 3 M.J. 740 (N.C.M.R.), rev’d on other grounds , 4 M.J. 115 (C.M.A. 1977).
  6. The accused must reasonably apprehend immediate threat of death or serious bodilyharm, and there must not be alternatives. United States v. Olinger , 50 M.J. 365 (C.A.A.F. 1999) (finding no “substantial basis” in law to reject the guilty plea, where accused went AWOL and missed a movement because he felt his wife’s depression might kill her; during the providence inquiry, the accused failed to provide enough details of immediate threat of death or serious bodily harm and that there were no alternative sources of assistance for his wife other than going AWOL and missing movement).
  7. Accused was not entitled to duress defense because he had a reasonable opportunityto avoid going AWOL. United States v. Riofredo , 30 M.J. 1251 (N.M.C.M.R. 1990) (finding that accused should have sought the assistance of the command to stop assaults by noncommissioned officer); R.C.M. 916(h); see generally TJAGSA Practice Note, Duress and Absence Without Authority , Army Law., Dec. 1990, at 34 (discussing Riofredo ).
  8. United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) aff’d, 58 M.J. 129(C.A.A.F. 2003). Accused who was ordered and who refused to receive his sixth and final anthrax vaccination could not raise defense of duress. The defense requires an unlawful threat from a human being. Defense of duress is not raised by a reasonable belief that compliance with a lawful order will result in death or serious bodily injury.

United States v. Washington,

Defenses to unauthorized absence