California Penal Code Section 288a(b)(1) and the Term ''Duress''

To prove a violation of Penal Code section 288, subdivision (b)(1), the evidence must show that the defendant committed a lewd act on a child under 14 years of age by "use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." The term "hardship" used in the definition of duress is not included in the statute. As noted in People v. Leal (2004) 33 Cal.4th 999, "The term 'duress' as used in section 288, subdivision (b)(1), was first defined in People v. Pitmon (1985) 170 Cal.App.3d 38, 48. The Court of Appeal in Pitmon observed: 'Duress, as an element of a criminal offense has not been previously given legal definition.' The court in Pitmon rejected the argument that it should adopt the definition used for 'duress' as a defense to a criminal charge, which 'is established only if one acted out of fear of imminent death or great bodily harm,' noting that 'the purpose served by the concept of "duress" as a defense is manifestly different from that served by inclusion of the term as an element of a sex offense against minors.' Instead, the court relied in part on the dictionary definition of 'duress' and found 'duress as used in the context of section 288 to mean 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.' " (Leal, supra, 33 Cal.4th at p. 1004,.) The Pitmon definition of "duress" "has been consistently used and has been incorporated in the standard jury instruction for section 288, subdivision (b)(1). " (Leal, supra, 33 Cal.4th at p. 1009.) "In order to define 'duress' for purposes of section 288, subdivision (b)(1), the court in Pitmon recognized that 'courts are bound to give effect to statutes according to the usual, ordinary import of the language used' , and consulted Webster's Third New International Dictionary, which currently includes the following definition of duress: 'restraint or check by force . . . stringent compulsion by threat of danger, hardship, or retribution . . . .' (Webster's 3d New Internat. Dict. (2002) p. 703, italics added.) We agree. 'Courts frequently consult dictionaries to determine the usual meaning of words.' " (Ibid.) In Leal, amicus curiae argued "that including 'hardship' in the definition of 'duress' would make 'duress' overly vague. But the long application of the Pitmon definition has not demonstrated this to be the case. Only one published decision has applied the term 'hardship' in this context and no issue was raised that the term was vague. In People v. Bergschneider (1989) 211 Cal.App.3d 144, the defendant forced his 14-year-old, 'slightly mentally retarded' stepdaughter to have sex with him in part by threatening to put her 'on restriction' if she refused, which meant to the victim that 'she couldn't go anywhere or spend the night with anyone.' The Court of Appeal held: 'The threatened restriction constitutes "hardship or retribution" within the meaning of Pitmon. It was for the jury to determine whether a reasonable adolescent in the victim's position would have been coerced.' " (Leal, supra, 33 Cal.4th at pp. 1009-1010.)