Is the defence of marital coercion an anachronism?

Vicky Pryce’s conviction, following her second trial, represents the final act in Chris Huhne’s political trajectory from hubris to nemesis. But now that the Westminster scandal is starting to abate, should Parliament revisit the law relating to Pryce’s defence of “marital coercion”?

This seldom-used defence, applicable only to married women who commit a crime in the physical presence of their husbands, seems something of a quaint anachronism, especially following the recent overwhelming vote by the House of Commons in favour of gay marriage.

The law of marital coercion states that “it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband”.

Whereas a defence such as duress applies only in cases where a threat of death or serious injury is made to an individual who has no other option but to commit the crime, the defence of marital coercion does not require any threat of physical force.

Instead, as the Court of Appeal noted in a 1996 case, the wife must prove on the balance of probabilities that “her will was overborne by the wishes of her husband”.

The result is that wives have a defence open to them in circumstances that fall short of duress, and that defence is not available to unmarried women, male defendants or those in a civil partnership.

Marital coercion originated from the common law rule, which said that where a wife committed a crime in the presence of her husband she was acting under his coercion unless it was proven otherwise.

Prior to 1692, its practical benefit applied in those cases when a married couple were jointly charged with a capital offence, and the wife might otherwise face the death penalty, but her husband could claim benefit of clergy.

Since then it has been largely justified on the basis of the wife’s supposedly inferior domestic status, dressed up with the Latin tag of sub potestate viri.

The 1922 edition of Archbold’s Pleading, Evidence & Practice in Criminal Cases notes wryly that a “husband and wife cannot alone be found guilty of conspiracy, for they are considered in law as one person, and are presumed to have but one will”. Worryingly, this principle is still endorsed as good law in the 2013 edition of Archbold.

In 1925, the Criminal Justice Act removed the presumption that the defence was raised in all circumstances, and placed the defence on a statutory footing. Effectively, the defence remains, but the burden now rests with the defendant to prove her defence on the balance of probabilities.

Nonetheless, the question remains as to why in 2013 marital coercion still exists in the statute books? No similar defence exists in other family relationships, such as between a parent and child. Neither, on the face of it, does the defence extend to homosexual couples in a civil partnership, or to cohabiting couples.

There seems something deeply anachronistic about marital coercion, which harks back to the darker days of gender inequality.

That’s not to say that there haven’t been repeated calls over the years to repeal it. A report of the Law Commissioners in 1845 recommended that marital coercion be abolished, and it was proposed in the draft Criminal Code of 1879, and subsequently in the 1922 Avory Committee report.

In 1977, the Law Commission questioned “whether the defence is appropriate to modern conditions”, and again argued in favour of scrapping it altogether, in favour of a single defence of duress. That recommendation was resurrected as part of the Law Commission’s draft Criminal Law Bill of 1992, but again without success.

The 1977 Law Commission report noted that “there were very few instances of the defence being invoked”, but in recent years it has seen something of a renaissance. In 2008, Anne Darwin, wife of the so-called “canoe man” John Darwin, raised marital coercion unsuccessfully. Now that Vicky Pryce has raised its profile yet further, it seems likely defence lawyers will seek to rely on it more frequently in the future.

And yet, if marital coercion does become a commonly used defence, the chances of it being challenged in the appeal courts are increased considerably. Recent case law on the Article 8 right to a private and family life suggests that the courts might be compelled by the Human Rights Act to interpret the marital coercion as covering those in civil partnerships.

If that were to be accepted, it would be a short step to extend the defence to all married people. If that were to happen, then a logical extension of marital coercion might well prove to be its undoing. It would certainly be an unexpected footnote to the end of Chris Huhne’s political career.

http://www.thetimes.co.uk/tto/law/article3688611.ece