Duress is the act of forcing an individual to do something against his/her will. It is a state of compulsion or necessity in which a person is influenced by the unlawful restrain of his liberty or by actual or threatened physical violence, to do an act. Duress is a complete defense to the offense of bigamy. For a marriage to be valid, the spouses must have entered the marriage freely and voluntarily. If either party was induced to marry by force or duress, the marriage is voidable and can be annulled. Generally, in order to amount to duress, the threats must be of such a nature as to inspire a real fear of bodily harm. Mere fear of disgrace without the fear of physical harm is insufficient.
Duress is an affirmative defense and applies when an accused engages in a proscribed conduct because he was compelled to do so by the threat of imminent death or serious bodily injury to himself or another. While raising the defense of duress, it must be proved that duress must have been the inducing cause for the marriage and that consent to marry would not have been given but for the duress. Moreover, the force or duress must continue to the time of the wedding ceremony. If a coerced spouse had an opportunity to escape or overcome the force or duress, the defense is not granted.
The burden of proving duress is upon a defendant. In order to prove duress, an accused must show that he was compelled to act by threat of imminent death or serious bodily injury[i]. Moreover, a defendant who claims duress must establish that the threatened harm was conditioned on his committing the charged offense, as opposed to some other defense[ii].
A defendant must be under immediate personal constraint at the time s/he does an act before s/he will be exonerated. For there to be duress, fear must exist at the time of the act. However, threats and circumstances inducing the act need not be present[iii].
In a trial for bigamy, a defendant will not be permitted to plead duress in order to avoid conviction and punishment for seduction[iv].
To claim the defense of duress, the alleged offence must be done when the person threatening is actually present. It means the person threatening shall be so near as to have the party with the means at his command under his power and control at the time s/he does the act[v].
[i] Acosta v. State, 660 S.W.2d 611, 613-614 (Tex. App. Corpus Christi 1983)
[ii] Anguish v. State, 991 S.W.2d 883, 885 (Tex. App. Houston 1st Dist. 1999)
[iii] Walker & Walker v. McNeils & Calder, 1843 Tex. LEXIS 31 (Tex. 1843)
[iv] Medrano v. State, 32 Tex. Crim. 214 (Tex. Crim. App. 1893)
[v] Paris v. State, 35 Tex. Crim. 82 (Tex. Crim. App. 1895)