Marital coercion

Marital coercion is a statutory defence to most crimes under English criminal law and under the criminal law of Northern Ireland. It is similar to duress.

Legislation

The defence is contained in section 47 of the Criminal Justice Act 1925:^[1]

“

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.

”

This section reversed the legal burden of proof in such cases.

Section 37 of the Criminal Justice Act (Northern Ireland) 1945 (c.15) (N.I.) is identical to the section cited above and applies to Northern Ireland.

Paragraph 4 of Schedule 3 to the Crimes Act 1900 makes provision for New South Wales.

Differences to duress

While marital coercion is broadly similar to duress, it has the following differences:

• It must be proved that the defendant is the legal wife of the man who coerced her. A mistaken though reasonable belief that she was married will not suffice.^[2] Civil partnership does not suffice.^{[citation needed]}
• The burden of proof is on the defence to prove marital coercion on the balance of probabilities, whereas the burden is on the prosecution to disprove duress beyond reasonable doubt.
• Duress requires a threat to kill or cause serious harm to a person. The Court of Appeal held in R v Shortland ^[3] that marital coercion need not involve physical force or the threat of force. (However mere loyalty to her husband does not suffice.)
• Section 47 requires the husband to be present when the offence is committed. The defence of duress does not require the presence of the person who issued the threat, provided that the threat is still effective.
• Duress is not a defence to attempted murder, but attempted murder is not excluded by the text of section 47 from the scope of marital coercion. (Although the offence of attempted murder did not exist in 1925, there were offences of assault with intent to kill, poisoning etc., which were not excluded by the 1925 Act.)
• Duress is a defence to some forms of treason,^[4] but marital coercion is not.

Proposals for reform

In 1977, the Law Commission recommended that the defence of marital coercion should be abolished altogether. They said that they did not consider it to be appropriate to modern conditions.^[5]

References

• Archbold Criminal Pleading, Evidence and Practice (2008) 17-133

1. ^ c. 86 15 & 16 Geo. V
2. ^ R v Ditta, Hussain and Kara [1988] Crim. L. R. 42, CA
3. ^ [1996] 1 Cr. App. R. 116
4. ^ Archbold 17-119
5. ^ The Law Commission (1977) Defences of General Application (Law Com No.83).

Further reading

• Pace [1979] Crim LR 82 contains a discussion of the defence and arguments in favour of its retention.