The marital coercion defence raised by Vicky Pryce has had a long if intermittent history. It stemmed from the time when, because they often could not read and write, women were denied the benefit of clergy at assizes and so could not avoid punishment.
As a result there was the irrebuttable assumption that a married woman acted under the thumb of her husband. There were a couple of cases around 1800 and then, apart from Emily Wright, who in 1904 forged papers but not in the presence of her husband, no one seems to have thought of it again until 1921. Then lawyers for the very striking and self-possessed Violet Peel, herself the daughter of a racing gent, ran it when she and her husband, the ineffective Captain Peel, were charged with a racing fraud. The Peels had been backing winners when they already knew the result. To the surprise of the papers and spectators, the captain pleaded guilty and received a nine-month sentence. Although it was apparent Violet was the leading light in the scam, she was acquitted. ‘It is a melancholy doctrine,’ said Mr Justice Darling, ‘but I am bound to apply it’.
Two years later Minnie Malcolm ran the defence when charged, along with her husband, with obtaining money by false pretences. The case against her was withdrawn and this time members of parliament queued up to denounce the iniquity.
As the Pryce trial heard, there are now certain basic requirements. The wife must be a wife. It does not apply to a woman who has innocently been the victim of a bigamous marriage. And, as Emily Wright found out in 1904, the offence must be committed in the presence of the husband.
In 1977, the Criminal Law Commission recommended the abolition of the defence as not being appropriate to modern times.
What about the henpecked husband such as Captain Peel? Aren’t his human rights being infringed as things stand? And with gay marriage being now only an aisle away, there are further problems in the offing. Will either or both be allowed to raise the defence if the need arises? It is doubtful matrimonial coercion will remain on the books for much longer.
James Morton is a writer and former criminal defence solicitor