Duress as a Defence to Piracy

I am fascinated by the parallels between past eras of piracy and the current resurgence in Somalia. In a law review article last year, Peter Leeson notes that during the 18th century, Caribbean pirates cleverly avoided conviction by the British based on a defence of “impressment.” As Leeson puts it:

Voluntary complicity with a pirate crew was important to establishing guilt. Pirates exploited this loophole by pretending to conscript seamen who joined their ranks voluntarily. Since pirates did genuinely compel some seamen to join their companies, court officials considered the impressment defense plausible.

In order to buttress the conscription defense, pirates needed some kind of corroboration.

conscripts, real and pretend, asked their captured fellow sailors, who the pirates released, to advertise their impressment in popular London or New England newspapers. If authorities ever captured the pirates the “conscripts” sailed with, “conscripts” could use the newspaper ads verifying their forced status as evidence in their defense.

An “impressment” or “conscription” defense is akin to a modern defence of duress, providing a justification or excuse because of the involuntary nature of the conduct. In the U.S., the defence must be proven by the defendant by a preponderance of the evidence. Therefore, the defendant must put forward some affirmative evidence that he was forced to perform the criminal act.

Last November, in “the first piracy case to be tried in a U.S. court since the Civil War,” the defendants initially asserted that they were merely fishermen.  In rebuttal, the prosecutor said, the defense amounted to: “We didn’t do it, but if you think we did it, someone made us do it.”

There is undoubtedly some truth to the claim that they were “forced” into piracy. The coastline of Somalia is 3,898 kilometres long. About 55 per cent of its population lives along this coastline many of whom depended upon fishing for their livelihood. In this regard, a 2006 UN Environment Program report noted:

a large number of foreign vessels illegally fishing in Somali waters and serious pollution caused by vessels discharging toxic waste. Heavily armed foreign boats have often tried to exploit the breakdown of law and order in Somalia since the overthrow of President Mohammed Siad Barre in 1991 by fishing in the rich Somali waters, thus depriving coastal communities of resources.

Other support for this appears here. However, others argue that this is just a cheap excuse for those who voluntarily chose piracy. Regardless of its merits, suspected Somali pirates have already taken a page from another era.  Now, where to publish that ad?

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