Stuart P. Green (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Homicide Exceptions to Four Criminal Law Defenses: Consent, Duress, Necessity, and Statutes of Limitations (Palgrave Handbook on the Philosophy of Criminal Responsibility, forthcoming) on SSRN. Here is the abstract:
The law of homicide is exceptional within the criminal law in a variety of ways, including in: the severity of its sanctions; the complexity of its grading and labeling; the difficulties it faces in defining its protected class, especially at the beginning and end of life; and the fact that it recognizes at least one (partial) defense that does not apply to other crimes -- namely, provocation. In this paper, I focus on yet another, particularly striking, form of homicide exceptionalism: four key defenses that apply generally to other crimes, but in many jurisdictions do not apply to murder (or, sometimes, other homicide offenses). These defenses are consent, necessity, duress, and statutes of limitations.
At first glance, such exceptionalism, across such a broad array of defenses, is surprising. Each defense has its own distinct conceptual and normative foundation: Consent is normally understood as a failure-of-proof defense; it is meant to protect personal autonomy by giving the would-be victim control over what others do to his body, property, and other interests. Necessity is recognized as a justification defense; it permits the defendant to engage in conduct that, though it otherwise would violate the law, prevents a greater harm from occurring. Duress is generally understood as an excuse defense; it recognizes the supposed unfairness of holding a defendant, threatened with serious harm unless he acts, to a moral standard that few in society could be expected to live up to. And statutes of limitations (where they apply at all) are viewed as a “nonexculpatory public policy defense”; their goal, it is said, is to promote fairness and accuracy in criminal proceedings and the interest defendants have in “repose.”
All four defenses certainly could be applied across the board to all criminal offenses. So why not apply them to homicide? The goal of the piece is not so much to recommend or disparage any of the four homicide exceptions as it is to examine their underlying logic and rationale. We will want to ask what the exceptions tell us about both the defenses themselves and the distinctive interests the law of homicide is meant to protect.
