Marital Coercion

Rodney Hylton-Potts looks into marital coercion as a defence

It is the statutory remnant of that now-abolished common law presumption that Vicky Pryce, estranged wife of disgraced former cabinet minister Chris Huhne, infamously relied upon before her juries

Is the defence of marital coercion an outmoded remnant of Victoriana still embedded in the legal system? Or does it contain progressive possibilities? Ms Pryce’s hung jury suggests that the obscure defence of marital coercion still has legs even in the 21st century.

If a wife on the balance of probabilities can show that she has committed an offence in the presence of her husband and was coerced by him, she is freed from criminal responsibility for all crimes barring murder and treason. And coercion is a far more subtle concept than duress: no threats of physical violence are required, merely sufficient pressure to cause a wife’s will to be overborne by the wishes of her husband so that she was forced unwillingly to participate need be shown.  Less than the fear of extreme violence that must accompany duress but more than loyalty to, or love of, one’s spouse, marital coercion represents the law’s ancient recognition that the female half of the unit plays an obedient and weaker role to that of the male.

As the Vicky Pryce trial shows, competing versions of womanhood are raised when marital coercion is invoked. Is a wife a passive and unequal subordinate to her husband? Or is today’s wife, with all the spousal rights and protections that go along with that status, capable of being suborned by her man?

Anne Darwin, who helped her canoeist husband fake his death as part of a life insurance fraud in 2002, found out in 2008 when convicted after unsuccessfully relying on marital coercion that there were limits on juries’ acceptance of a wife’s tractability.

In a 1954 case  a 16-year-old wife who had begged her husband not to commit a burglary but yielded to his threats of abandonment and participated in the forced entry of a property, was acquitted.

The last recorded time the defence was successfully run  R v White (Heather), in 1974, shows that some husbands need not directly threaten death, or maiming to get their way. Mrs White was acquitted of robbery after guarding a gagged and bound 16-year-old hotel receptionist at the behest of her domineering spouse.

Had either wife been unmarried women, however, neither would have been able to rely on marital coercion.  So why should unmarried women be deprived of such a defence?

And why are same-sex civil partners excluded from the defence? If the Marriage (Same Sex Couples) Bill 2013 becomes law, will the definition of ‘wife’ not have to be stretched?

And should  plans to counter same-sex marriage by creating heterosexual civil partnerships succeed, will female heterosexual civil partners be excluded from relying on the defence?

The answer is ‘yes’ on a strict reading of the 1925 Act. Does the 1925 Act then authorise an unequal practice that could be challenged under article 8 (right to privacy) combined with article 14 (prohibition against discrimination)?