Marital Coercion Abolished

Marital Coercion Abolished

A married woman's duress claim is judged on the same terms as anyone else's, and the Model Penal Code says so in a subsection of its own. Section 2.09(3) provides that it is no defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under the section.¹ The Code's text adds, in brackets, that the presumption that a woman acting in her husband's presence is coerced is abolished.² New Jersey's duress statute, quoted in State v. B.H., carries the same rule in its subsection c and abolishes the presumption in the same words.³ The subsection therefore works by subtraction. It removes marital status as a source of excuse and sends the wife back to the elements of § 2.09(1): coercion by the use of, or a threat to use, unlawful force against a person, of a kind that a person of reasonable firmness in the actor's situation would have been unable to resist.⁴

The subsection answers an older doctrine of marital coercion. Under that doctrine a wife could not be punished for any crime other than murder or treason if she acted on her husband's command, and coercion was presumed when she committed the offense in his presence.⁵ The doctrine surfaced in a modern English prosecution of Vicky Pryce, an economist charged with perverting the course of justice after she falsely certified that she, rather than her husband, had been driving a car caught speeding. She claimed that her husband had pressured her to take the blame.⁶ Under the Code that claim would have to be built the way any duress claim is built. The pressure as reported was an insistence that she had to do it, which is a demand and not a threat of unlawful force against her or anyone else, so the first element would fail before the reasonable-firmness question was ever reached.⁷

Each half of § 2.09(3) has its own logic. The rule that a husband's command is no defense follows from what coercion means in the Code. The element requires actual force or a threat of force, and a command, even from a spouse, supplies a reason to obey that the actor remains free to weigh and decline. The abolition of the presumption does subtler work. A presumption attached to a wife's presence at her husband's side lets proof of two facts, the marriage and the presence, stand in for proof of the one fact that matters, which is that a threat of force actually produced the conduct. Such a presumption would excuse a woman who was never threatened, and the prosecution would have no occasion to test the claim. Abolishing it puts a spouse on the same footing as a stranger, since both must show coercion that meets the reasonable-firmness standard.⁸

The marriage can still appear in the factual picture. A husband's earlier violence, known to the wife, can make a present threat credible, and credibility bears on whether the coercion was real and whether it was of a kind a reasonably firm person could not resist. Students lose this issue when they treat a husband's command or presence as supplying the coercion, since under § 2.09(3) that fact adds nothing until a threat or use of unlawful force is shown.⁹