Marital coercion: an archaic defence?

The trial of Vicky Pryce has brought the defence of marital coercion back into the public consciousness and has sparked debate about whether this ˜antiquated defence has any place in modern society. In fact, the Law Commission recommended the abolition of the defence, in its current form, as far back as 1977.

The defence has developed from an original presumption that any married woman who committed an offence did so under the coercion of her husband. This law prevailed at a time when women were subservient to their husbands and had no independent means. That presumption was abolished in 1925 and replaced with s.47 Criminal Justice Act 1925. That section reads: ˜Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished, but on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband. The defence is rarely pleaded and the trial of Ms Pryce has fuelled the controversy as to whether marital coercion should be abolished altogether. Many advocates for abolition rely on the defence of duress as a viable alternative to women that find themselves in coercive marriages.

The defence as it stands only applies to a ˜wife and, therefore, cannot be pleaded by married men or cohabitees. It also does not apply to civil partners and it is debatable that it will survive any legalisation in favour of gay marriage. As was demonstrated in the Pryce trial, it is, however, available to a divorcee provided that she was married at the time the offence was committed. An honest but mistaken belief in a marriage that is not valid will not suffice.

While there has been support for its abolition, there are some key differences between the alternative defence of duress and marital coercion. Marital coercion requires the husband to be present at the commission of the offence while duress can still operate in the absence of the protagonist. While duress requires a threat of death or serious physical harm, marital coercion is more flexible. A wife can avail herself of marital coercion if she suffered from emotional or moral threats. However, following R v shortland, the woman must show that her will was overborne with the wishes of her husband if she is to succeed with the defence. Duress must be disproved by the prosecution while the defendant must show, on the balance of probabilities that she was coerced for marital coercion to absolve her of liability. However, in Pryces trial, this burden was reversed due to the Judges concerns about the compatibility of this burden in light of Article 6 of the Human Rights Act 1998. The incompatibility of the defence with this article and Article 14 of the Act is cited as further evidence of the redundant nature of marital coercion in todays society and may prompt the Government to reconsider reform.

The defence was also used by Anne Darwin, the wife of John Darwin who faked his death in a staged canoe accident, at her trial in 2008. she was convicted and sentenced to six and a half years for fraud.