§702-231 Duress. (1) It is a defense to a penal charge that the defendant engaged in the conduct or caused the result alleged because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.

(2) The defense provided by this section is unavailable if the defendant recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish the requisite state of mind for the offense charged.

(3) It is not a defense that a person acted on the command of his or her spouse, unless he or she acted under such coercion as would establish a defense under this section.

(4) When the conduct of the defendant would otherwise be justifiable under section 703-302, this section does not preclude the defense of justification.

(5) In prosecutions for any offense described in this Code, the defense asserted under this section shall constitute an affirmative defense. The defendant shall have the burden of going forward with the evidence to prove the facts constituting such defense, unless such facts are supplied by the testimony of the prosecuting witness or circumstance in such testimony, and of proving such facts by a preponderance of the evidence pursuant to section 701-115. [L 1972, c 9, pt of §1; am L 1979, c 183, §1]

COMMENTARY ON §702-231

A narrow defense is provided in this section for the defendant who claims that the defendant's conduct resulted not from the defendant's own culpability but rather from coercion exercised upon the defendant by a third party. It cannot be said that the defendant's conduct is not "voluntary" as that term is used in the penal law, because the defendant's conduct does result from the defendant's conscious determination. Rather, the basis for permitting the defense is the rationale that the penal law ought not to condemn that which most persons would do in similar circumstances.

The defendant is afforded by this section an affirmative defense if the defendant engaged in the conduct or caused the result alleged because of the use or threatened use of unlawful force against the defendant or another and a person of reasonable firmness would have been unable to resist such duress. Although the "reasonable man" standard is employed in a limited manner, the Code has not invoked a negligence standard for penal liability in all cases of duress. The conscious decision to yield in a duress situation is distinguishable from the inadvertent disregard of unknown risks in the case of negligence.

Subsection (2) makes the defense unavailable if the defendant was culpable in placing the defendant in the position where the defendant would be subject to duress.

Subsection (3) abolishes the common-law presumption of coercion when a woman commits an offense under the direction of her husband. The defense is still available to the wife provided she can raise and prove the issue by evidence.

The prior law on this subject, H.R.S. §703-5 (as compiled prior to this Code), provided that a defendant will not be regarded as responsible for an act "to the doing of which he is compelled by force which he cannot resist, or from which he cannot escape" if the threatened or imminent danger is greater than that inflicted by the defendant. (Emphasis added.)

SUPPLEMENTAL COMMENTARY ON §702-231

Act 183, Session Laws 1979, added subsection (5) which expressly categorizes duress as an affirmative defense. Senate Standing Committee Report No. 883 states:

If any class of defenses deserves the title of "affirmative," it is those defenses that admit the commission of the act charged with the necessary mental element, but seek to interpose the existence of facts that, if true, would provide a complete exculpation. The traditional defenses of duress, necessity and self-defense are common examples. Unless one is willing to draw the concepts of volitional act and mental element quite broadly, these defenses do not negate either concept. In that respect they are analogous to the common law of confession and avoidance; they admit the truth of the facts pleaded but offer an excuse. 36 Ohio State Law Journal 828 at 840-41.

Case Notes

Accomplice's testimony regarding other accomplice's prior bad acts was not relevant to defendant's claim of duress and was, therefore, inadmissible under HRE rule 402. 101 H. 269, 67 P.3d 768 (2003).

In a prosecution for prostitution, where defendant did not testify to any use or threat of use of unlawful force against defendant's person, and defendant acknowledged that officer did not block defendant's exit and defendant did not attempt to leave the hotel room, it could not be said that the trial court's finding that defendant failed to establish duress by a preponderance of the evidence was erroneous. 114 H. 1, 155 P.3d 1102 (2007).

The choice of evils defense under §703-302 and the duress defense under this section are not, as a matter of statutory law, inconsistent. 93 H. 399 (App.), 4 P.3d 533 (2000).