What is the legal test for "duress" in sexual assault cases?

California, United States of America


The following excerpt is from People v. Dearing, G050174 (Cal. App. 2016):

Duress, within the meaning of section 288, subdivision (b)(1), means "'"a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted."' [Citation.] Because duress is measured by a purely objective standard, a jury could find that the defendant used threats or intimidation to commit a lewd act without resolving how the victim subjectively perceived or responded to this behavior." (People v. Soto (2011) 51 Cal.4th 229, 246, fn. omitted.) "'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.' [Citation.] Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. [Citations.] [] The fact that the victim testifies the defendant did not use force or threats does not require a finding of no

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duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14.)

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