Homicide Exceptions to Four Criminal Law Defenses: Consent, Necessity, Duress, and Statute of Limitations

I am currently working on a new book that will explore a variety of ways in which the law of homicide is “exceptional,” including with respect to (1) the complexity of its grading and labeling, (2) the severity of its sanctions, (3) problems with defining its protected class, and (4) several defenses and partial defenses that apply to homicide but not to other crimes. In this paper, I will focus on yet another form of exceptionalism: four key defenses that apply generally to other crimes, but do not apply (at least in most common law jurisdictions) to murder and other homicide offenses. The four defenses are consent, necessity, duress, and statutes of limitations. At first glance, such exceptionalism, across such a broad array of key defenses, is surprising. Each of the defenses has an apparently distinct conceptual and normative basis: consent is often understood as a failure-of-proof defense; necessity as a justification defense; duress as an excuse defense; and statute of limitations (where it applies at all) as a “nonexculpatory public policy defense.” This paper will ask what this common exception can tell us about the underlying logic of the four defenses and the distinctive interests the law of homicide is meant to protect.