HB327: Duress as an Affirmative Defense

March 13, 2023

The United States is called a “nation of laws.” Our society is organized around the idea that true justice can only be achieved if the rules are fairly enforced for everyone.

But what if you are forced to break the law?

Enter the defense of duress — a legal precedent protecting individuals who are forced to engage in a criminal act. Chapter 8 of the Texas penal code defines duress this way: “It is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.”

In this 88th legislative session, a bill has been introduced by Representative Senfronia Thompson that relates to the affirmative defense to prosecution for a criminal offense for persons acting under duress.  

But what does duress have to do with human trafficking? And why do we need a bill amending the current law?

Traffickers are masters at making someone do something against their will. They use different methods of force, fraud, and coercion to exploit victims, yet the end goal is always the same: control. Survivors widely report enduring violence or the threat of violence at the hands of their traffickers.Traffickers then reinforce that control by making victims commit crimes against their will, such as theft, producing or selling illicit drugs, aggravated robbery, assault, or recruiting and compelling others to engage in prostitution. By criminalizing their victims, traffickers maintain even more control by pitting victims against law enforcement and the justice system.

So if duress clearly applies to traffickers and their victims, why must the law in Texas be amended?

Right now, the law states that duress only “exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.” This definition focuses on the “firmness” of the defendant. How capable were they of standing up to the immediate threat?

The problem with that definition of duress is that the violence or threat of violence that victims fear may not be imminent or immediate. That’s because the control traffickers have over victims is not always physical. Sometimes the most powerful forms of control are psychological — what victims believe about their trafficker. So victims may commit crimes for their trafficker because of past violence and threats that occurred well before the specific crime they feel forced to commit. Their calculus: “If I don’t do what he says (sell drugs), I know what he’s capable of doing.” The threat is no longer imminent, but the duress is in the form of lingering psychological control.

HB 327 takes that context into account, slightly changing the language in the law to “a reasonable person in the situation of the defendant incapable of resisting the pressure.” The crucial word is “situation” — resisting is less a test of a person’s firmness and more about assessing their overall situation and history. If HB 327 passes, victims will be able to speak more broadly about their relationship with their trafficking as a valid defense for crimes they were forced to commit.

Practically, this bill could make a significant impact on the lives of trafficking victims in Texas. Juvenile Justice facilities are one of the largest sources of screenings we have from across the state. Data from Lighthouse shows that over the past 7 years, more than 3,400 clear concern screenings have been identified for youth in the Texas juvenile justice system. That clear concern score is the highest risk level, which means there is a very high likelihood that the youth screened was a victim of sex trafficking or sexual exploitation. Of those 3,400 screenings of youth — likely victims of trafficking — who are in the juvenile justice system for committing a crime, it stands to reason some of them were forced by their trafficker to commit those crimes. If so, HB 327 is crucial in forming an effective defense.

This update to the law could have a significant impact on the lives of trafficking survivors by reducing their criminalization and providing them with a valid defense against crimes they were forced to commit. By passing HB 327, Texas would take an important step towards ensuring that justice is served for all and that we can continue restoring freedom and dignity to those who have been exploited.