In its application of the moral involuntariness
(73) Relying on the rationale that involuntary conduct cannot be deterred and that punishment of involuntary actions is pointless, the Supreme Court restricted the defence--as it did in Morgentaler--to "urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible." (74) To identify such situations where the "choice" to break the law is in fact a compulsion borne from "moral or normative involuntariness
", the Court established three cumulative tests that determine whether a wrongful act can be excused by necessity.
However, the unfortunate result of Ruzic is that it has "allowed moral involuntariness
to require an acquittal even when the accused's behaviour is morally blameworthy." (222) Thus, it may be possible that someone who acted in a morally involuntary way but who was morally blameworthy would nonetheless be acquitted.
The Court repeatedly stated that the question of whether the accused's "will was overborne at the time he confessed" (30) was to be determined "on the 'totality of the circumstances.'" (31) In what appears to have been an effort to rationalize and guide applications of the involuntariness
doctrine, Justice Felix Frankfurter issued a lengthy, encyclopedic opinion in the 1961 case, Culombe v.
The results of their study show that the first group is more responsive to positive and negative hallucination suggestions and during hypnosis they had a greater experience of involuntariness
. They also showed impairment in their working memory capacity, higher rates of pathological fantasy and symptoms related to dissociation, and had more stressful experiences in their life.
They were experiencing a shift in health status (even if they may have thought it was temporary), and were learning, for the first time, of the irreversibility, involuntariness
and undesirability of such a shift in status in relation to their health.
The most plausible argument to be made from involuntariness
is this: the waiver term was unfavorable, but donating their embryos was so important, and the opportunity to do so without agreeing to a waiver so lacking, that donors' acceptance of the waiver was coerced.
Specifically, a defense of duress under the bar should establish a presumption of involuntariness
in favor of applicants who make an adequate factual showing that they in fact served as child soldiers.
In a recent article, Professor Berger reminds us of the importance of overt critical reflection on the normative underpinnings of our assessments of criminal responsibility, particularly in situations in "which the influence of powerful emotions forms the basis for a claimed defence." (67) Focusing on the relationship between emotion, choice and moral involuntariness
, a concept given constitutional status by the Supreme Court in R.
[section][section] 5-116.01 to 5-116.03 (2005 ordinance subjecting custodial statements that are not recorded to a rebuttal presumption of involuntariness
which can be overcome only by clear and convincing evidence that the statement was voluntary).
Phillips and Frederick (1995:250) also refer to a statement by Herman indicating that traumatic re-enactments often act mysteriously, in that, irrelevant of "the level of conscious awareness that accompanies them, they seem to have a quality of complete involuntariness
and driven tenacity".
(99) The defense then submitted a motion in limine to permit introduction of evidence related to the polygraph examinations at the trial before members for the purpose of demonstrating the involuntariness
of the subsequent confession.
Then the data are classified to identify the voluntaries and involuntariness
In practice, the issue of involuntariness
tends to be ignored in studies of social exclusion.
The conceptual crux of legal coercion (or 'involuntariness
') does not lie in P's intention, knowledge, or pure psychological state, but rather in the fact that P's volition was subjected to an improper reason for intentional action (fear)--a reason from which, given the background scheme of rights (duties, immunities, disabilities, etc) that was the context of P and D's interaction, P ought to have been free--and that reason for intentional action produced the outcome of which P now complains and for which she seeks to disclaim 'legal responsibility'.