Legionnaires of the 1st Regiment of the French Foreign Legion near Marseille last year. (Claude Paris/Associated Press)
Contributor, The Volokh Conspiracy

American criminal law generally recognizes the defense of duress: The rules vary from jurisdiction to jurisdiction, but one common formulation is that the defendant is excused from criminal responsibility if

  1. “the defendant was under an unlawful and imminent threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury,”
  2. “the defendant had not recklessly or negligently placed herself in a situation in which it was probable that she would be forced to perform the criminal conduct,”
  3. “the defendant had no reasonable, legal alternative to violating the law, that is, a chance both to refuse to perform the criminal act and also to avoid the threatened harm,” and
  4. “a direct causal relationship may be reasonably anticipated between the criminal act and the avoidance of the threatened harm.”

Duress is usually not a defense to a charge of murder, but it can apply to many serious offenses — the classic example is somehow who participates in a bank robbery because he is being held at gunpoint, or because he knows his family is being held at gunpoint.

But while there’s a pretty well-established core to the defense, defendants naturally try to push the boundaries. Here’s an unusual fact pattern, from U.S. v. Franks (U.S. Army Ct. Crim. App.) (decided Aug. 31, but just flagged in a Westlaw squibbing service a few days ago):

We hold that appellant’s own fear of suicide does not support a defense of duress … [against a charge] of desertion with intent to shirk important service …

In spring 2008, appellant [Second Lieutenant Lawrence J. Franks] graduated from the United States Military Academy at West Point and commissioned as a medical service corps officer. In January 2009, appellant reported to 2nd Battalion, 22nd Infantry Regiment (commonly referred to as the “Triple Deuce”), 1st Brigade Combat Team (1BCT), 10th Mountain Division (Light Infantry) at Fort Drum. His duties included tracking and reporting on the medical readiness of the soldiers in the unit. His unit was on the [projected timeline] to deploy to Iraq in September 2009 as part of the “Surge.” The unit had completed reset from a redeployment, had started a new training cycle, and was preparing for another deployment, but had not yet received deployment orders.

Appellant asserts he grew disillusioned with his assignment, became depressed, and developed suicidal ideations. He stated he wanted direct contact with patients and did not enjoy a “desk job.” According to appellant, he had unreported and undiagnosed depression and suicidal ideations during high school and while attending West Point, but avoided his suicidal ideations through physical and athletic activities. He decided to join the French Foreign Legion … because he believed it would be more rigorous and challenging.

On 30 March 2009, after purchasing a round trip ticket, appellant left his unit and flew to France. Before he left, he paid his rent and left his military identification card, military identification tag, West Point class ring, cell phone, and keys to his office. Appellant left his military clothing and equipment … and asked his roommate to turn it in. He also wrote letters to his roommate and family indicating his suicidal ideations.

On 6 April 2009, appellant executed a five-year enlistment contract with the Legion. Appellant was provided a new identity by the Legion. During his enlistment, appellant deployed to Mali, Central African Republic, and Djibouti. He served as a team leader, as a medic, and on the security detail for a French Army BG.

Back in the United States, in January 2010, the Triple Deuce deployed to Afghanistan.

On 6 April 2014, appellant completed his five-year enlistment contract and was discharged from the Legion. The next day, appellant traveled to Wiesbaden, Germany and voluntarily surrendered to the U.S. Army. The government charged appellant with two specifications of desertion and one specification of conduct unbecoming an officer. A “sanity board” ordered pursuant to Rule for Court-Martial [hereinafter R.C.M.] 706 found that when appellant left his unit, he had a severe mental disease or defect—major depressive disorder—as well as recurrent, severe and active suicidal ideations and an alcohol use disorder. However, the sanity board found he understood the wrongfulness of his actions and could participate in his defense.

At trial, appellant admitted it was wrong to leave the Army for five years. He claimed, however, his “tunnel vision” and thoughts of suicide left him with two choices: commit suicide or join the Legion. Appellant reasoned that since France is an ally of the U.S. and the Legion was engaged in fighting terrorism, joining the Legion was not conduct unbecoming an officer. Appellant asserts at trial and on appeal he should be commended for his decisions….

Appellant’s duress defense claim on appeal can be summarized as follows: appellant asserts that if one will kill himself if he does not commit a crime then he is under duress and cannot be criminally liable for committing the crime. While we reject appellant’s argument, our conclusion should not be misinterpreted as a lack of understanding of the seriousness and gravity of the mental health issues of service members. Rather, our analysis focuses on whether appellant attempted to pursue a defense that was not available to him under current precedent….

The defense of duress applies when:

the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused had any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply.

Appellant argues … that appellant’s own suicidal ideations could … support a defense of duress. Appellant asserts that having only two choices, kill himself or join the Legion, he intentionally left his unit to avoid an overwhelming desire to kill himself. Appellant thought the “rigorous and regimented lifestyle would cause his suicidal ideations to diminish.”

There are several problems with appellant’s argument, and we hold the military judge did not err by denying appellant’s request to instruct the panel on the duress defense. Under appellant’s theory, appellant is threatening himself. The defense of duress does not exist if the accused can avoid the threatened harm. If one is threatening oneself, then one can remove the threat. As the accused can remove the “threat” by no longer threatening himself, the accused can avoid the harm if he possesses the ability to exercise that choice.

If appellant could not understand this dilemma because he suffered from a severe mental disease or defect, the appropriate defense would be lack of mental responsibility. This is not to say that everyone contemplating suicide is suffering from a severe mental disease or defect, but for a lack of mental responsibility defense to exist, this would need to be the case.

Appellant argues his case is similar to United States v. Hayes (Ct. App. Armed Forces 2012), where the accused claimed if he did not steal and send funds to his mother, his mother would commit suicide. There, the [court] did not rule out the possibility that a threat of suicide arising from another person could provide a basis for the defense of duress. See also United States v. Toney (7th Cir. 1994) (noting a threat of suicide may be a sufficient basis for coercion if the defendant took reasonable alternative steps to avoid the suicide); but see United States v. Stevison (7th Cir. 1972) (affirming the denial of a defendant’s proposed coercion instruction where the defendant had not alleged that she had no opportunity, other than embezzling funds, to avoid her daughter’s threatened suicide). The Hayes court, however, did not apply the defense of duress for one’s own suicidal ideations.

Appellant argues the natural extension of Hayes would create a defense of duress for an accused’s own suicidal ideations. Adopting this position could arguably make an accused’s suicidal ideations a defense to any crime under the UCMJ except a homicide. Appellant is unable to cite one reported case that has adopted appellant’s theory. Our research indicates every federal, state, and military court that has considered the issue has rejected the theory that a person’s own compulsion or threat of suicide could raise a defense of duress.

Furthermore, this court does not read Hayes as broadly as appellant. Hayes involved a situation where an accused believed another person was going to commit suicide. The Hayes court applied “the ‘possible defense’ standard that is intended to serve as a lower threshold than a prima facie showing because it is intended as a trigger to prompt further inquiry during a guilty plea inquiry pursuant …, not to determine whether the defense is available or whether members in a contested case should be given an instruction.” …

[Moreover], the facts of appellant’s suicidal ideations did not reasonably raise a defense of duress…. [T]hree essential elements of duress are plainly absent based on appellant’s own factual recitation and testimony: the immediacy between appellant’s actions and the perceived threat; the opportunity to avoid the harm threatened; and the continuation of immediacy throughout the conduct in question. The defense of duress did not apply to the facts in appellant’s case.

First, the defense of duress requires the accused be under a threat of death or serious bodily injury. The sheer length of time necessary to carry out appellant’s plan shows the situation could not have had the requisite immediacy. Before leaving his unit, appellant conducted research into various foreign military organizations, to determine if they accepted U.S. citizens. Having determined his eligibility to enlist in the Legion, appellant settled some of his personal affairs, washed and organized his military property for turn-in, and purchased a plane ticket to France. Afterward, he went to the airport and flew to France and, after a review process and executing a contract, enlisted in the Legion.

Additionally, for the defense of duress to apply, there must have been “no other reasonable alternative” other than joining the Legion. The record reveals appellant had other choices. He did not seek to resign his commission in the Army or seek a branch transfer to what he would consider a more rigorous and demanding combat arms branch or unit.

Appellant could have sought mental health treatment, sought the advice of a chaplain, or checked himself into the hospital. Appellant’s testimony that he did not seek mental health treatment because he did not want to be prescribed medication highlights this point. Appellant understood he could have sought mental health treatment but was allegedly concerned about the stigma of seeking treatment. However, he did not make any effort to seek assistance from outside the Army or from other professionals. Even accepting appellant’s claims as true, this meant appellant understood he had options. Appellant chose to join the Legion because he preferred this course of action over seeking mental health treatment.

Lastly, the defense of duress requires the duress continue throughout the commission of the crime. Here, the threat of suicide would have had to remain throughout his entire five-year absence. Appellant himself specifically disavowed this claim and testified that once in the Legion, he continued to serve not because of his fear that he would commit suicide, but because he had not finished his enlistment contract with France.

Appellant took many steps to plan his desertion, had many opportunities to avoid or treat his suicidal ideations, and did not have suicidal ideations for the entirety of his five-year desertion. As the military judge rejected the defense of duress at trial, we likewise reject it here….

Senior Judge Campanella agreed that the defendant didn’t make out a duress defense on the facts of the case, but concluded that the court should “not rule out the possibility that an accused’s suicidal compulsion could be the basis of the defense of duress.”

Applied to this case, I accept the inference that appellant, knowing his unit would deploy in the meantime, intended to shirk important service when he enlisted in a foreign army for five years. Recognizing that the trial court saw and heard the evidence, I therefore find the evidence factually sufficient and concur with this court’s decision in this case.