Husband Criminal Responsibility Under Common Law

face of a prisoner

In English common law, marriage lessened some aspects of wives’ criminal responsibility. While hiding a felon was generally a crime, wives, but not husbands, could harbor a felon-spouse:

A wife who hides her felon husband from justice is not guilty as an accessory after the fact to the felony, but a husband who hides his wife is.^

This doctrine seems related to a more general doctrine of husband responsibility, known under the misleading term “marital coercion.” Under this doctrine, a wife who commits in the presence of her husband a criminal act other than the most serious criminal acts (e.g. murder or treason), is entitled to a rebuttable presumption that her husband coerced her into performing the act. A showing of actual or threatened physical violence isn’t necessary for this wifely criminal defense. This husband-responsibility (marital coercion) doctrine gained broad scope:

The doctrine has been applied to virtually all crimes not specifically excepted by the common law writers. Thus, it has been applied to such violent crimes as assault with intent to kill and assault with a deadly weapon. … The mere existence of a marital relationship is not adequate to raise an inference of subjection that would legally excuse a wife from criminal responsibility for her acts … . The presumption may be applied, however, if the husband was near enough to exert his immediate influence and control over the wife, even though he was not in the same room or was outside of the house. Furthermore, although a bare command by the husband will not raise the presumption if the wife acted in his absence, it has been held that an act begun in the husband’s absence will be within the presumption if it is completed in his presence. Seemingly distinct from the presumption of coercion is the rule that the wife may sometimes be excused from liability for criminal activities within her home under a presumption that the husband, as head of the household, controls everything found therein.^

Section 47 of the United Kingdom’s Criminal Justice Act of 1925 nominally abolished husband responsibility while formally representing wife and husband’s asymmetric position under criminal law:

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.

That statute remains in force in the United Kingdom. Husband-responsibility doctrine in judicial actions probably affected the sex ratio among prisoners less than a wife’s freedom from responsibility for her and her husband’s debts. Both criminal responsibility and debt responsibility under law reflect more general structures of gender and public deliberation.

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