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23 JUL 2013

In Defence of the Defence of Marital Coercion

Susan S M Edwards

Professor of Law, University of Buckingham, Door Tenant, 1 Gray's Inn Sq Chambers, London

Contrary to critics the criminal defence of marital coercion (Criminal Justice Act 1925, s 47) is not a relic which should be consigned to history but is of increasingly relevance to many wives, who, in our multicultural society with  its patterns of modern migration, find themselves sub virga viri sui. Family law by contrast has recognised the need to protect vulnerable women including men from forced marriage in the law on annulment (Matrimonial Causes Act (MCA) 1973, s 12), and the Forced Marriage (Civil Protection) Act 2007 makes threats and use of force a civil offence, providing  injunctive relief in the form of forced marriage protection orders and with a criminal provision coming into force.

Criminal law, with regard to the defence of duress has resiled, driven by a public policy need to confront gang culture, it becomes ever more difficult to establish duress for all including frail and fearful women. Baroness Hale in R v Hasan [2005] UKHL 22, tried valiantly to bring their predicament into the understanding of her colleagues in the House of Lords but they missed this opportunity to  consider her insightful concerns. Notwithstanding that the criminal law does recognise psychological duress where there is compulsion in circumstances of human trafficking, battered and/or  fearful women coerced into crime are left with but one champion in the Criminal Justice Act 1925, s 47. The criminal law should be taking urgent steps to develop the law to recognise that many wives and indeed cohabitees are under his thumb.

The full version of this article appears in the August 2013 issue of Family Law.   

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