Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Thursday, 14 February 2013

On marital coercion

Followers of the British press have been treated in recent weeks to the sight of the fall from grace of the senior Lib Dem politician, Chris Huhne. Huhne has recently pleaded guilty to perverting the course of justice and is likely to be sentenced to a period of imprisonment. The story was that his car was caught breaking the speed limit by a speed camera. He would have lost his licence if he admitted driving the car, and thought that this might have affected his chances of being elected to parliament. So he either asked or pressured his wife, Vicky Pryce, to declare that she had been driving and to take the points on his behalf. Unfortunately for him, at around the same time he was having an affair with his parliamentary assistant, and when he left his wife for the assistant  she leaked the story about the speeding to the press. And the upshot was that both were charged with perverting the course of justice (as I write the jury is considering its verdict).

So far so predictable, but what makes the story of interest to the criminal law is that Pryce has pleaded not guilty and has put forward the rarely used defence of marital coercion.

This defence is contained in s.47 of the Criminal Justice Act 1925, which states:

“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, interestingly, was a reversal of the traditional common law position, which was that a wife who committed certain crimes (excepting treason and murder) in the presence of her husband was presumed to be acting under coercion unless it could be shown that she took the initiative in committing the offence. This may have been explicable in a system of law where the woman owned no property and was assumed to be under the command of her husband, but makes little sense as women ecame more independent and were recognised as possessing equal rights.

It is accordingly not a surprise to find that there were proposals to reform this law from as early as 1845. In a case in 1912 a judge denied the existence of the rule, but his decision was overturned on appeal (the Court of Criminal Appeal having been established in 1906). The final blow to the old rule came with the case of R v Peel and wife in 1922 which involved a fraudulent betting scheme: the husband was convicted of the offence, but the wife (who the judge was clear had acted independently) was acquitted on the basis of the rule. As so often happens in such cases, questions were asked in Parliament, and this led to the establishment of the Avory Committee which recommended the complete abolition of the defence. Instead of this, s.47 replaced the old rule.

The new rule had certain requirements: the offence should be committed in the presence of the husband; and the coercion need not be physical but moral or psychological. All the same it is difficult to justify the existence of the rule as it seems to imply the women are weaker than their husbands and it only applies to married couples and not any relationship where this type of coercion might be exercised. So it is not surprising that the Law Commission recommended the abolition of the defence in 1977, to be replaced by the general defence of duress - though this proposal was never enacted.

Which brings us back to the present. The rule does seem strange and anachronistic, though in a world where we are perhaps more aware of the kind subtle psychological pressures that can be exercised by a dominant partner (especially in the context of domestic abuse) it is perhaps also a useful reminder that such coercion exists and might properly be recognised in some way by criminal law.

Thursday, 7 February 2013

On the wrong of rape

It is a common claim in criminal law theory that there are certain core wrongs, such as homicide or rape, which are recognized as such by all legal systems. I am, in general, sceptical about these kind of claims: even if we were to concede the general point – say, that homicide and rape are crimes in all legal systems at all times – this surely does not tell very much. If we look closer, we find that while, say, rape, might always have been a serious criminal offence, the underlying sense of what is wrong about rape and the way that it is criminalised (who is protected and what they are protected against) is quite different at different places and times. It seems, then, that the 'wrong' cannot be identified in isolation from some sense of the social function of the criminal law. 

From the manuscript of Bracton's
On the Laws and Customs of England
This can be illustrated with an outline of the history of rape in English law. The crime of rape in early medieval English law was an offence against sexual property – or the property of the father in the chastity (and hence marriageable value) of his daughter. Consequently the law distinguished between the rape of different types of women, treating the rape of a virgin as the most serious. This had implications for the punishment of the crime. The rapist of a virgin, as Bracton (writing in the thirteenth century) explains, was to be punished by mutilation - castration and blinding. But:
“Punishment of this kind does not follow in the case of every woman, though she has been forcibly ravished, but some other punishment does follow, according as she is married or a widow living a respectable life, a nun or a matron, a recognised concubine or a prostitute plying her trade without discrimination of person”
Sir Matthew Hale
By the eighteenth century, rape was seen as a crime of violence which might be committed against all women, and all rapists should be punished equally. For Blackstone, writing in 1769, rape is the “carnal knowledge of a woman forcibly and against her will”. However, the consequence of this definition - aimed at protecting women from sexual violence - was that non-consensual intercourse fell outwith the scope of the crime. And notoriously this was understood as meaning that a man could not rape his wife because consent was deemed to have been given on marriage. In the words of Sir Matthew Hale:
“for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”
In many jurisdictions the crime of rape is now conceived of as an offence against sexual autonomy – the choice of the (ungendered) individual to decide when and with whom to have sexual intercourse. This has the consequence of making consent (or its absence) the central element in the definition of the crime and broadening the definition of the actus reus (to include oral and anal penetration). Rape is no longer conceived of as a crime exclusively against women as it is the wrong against sexual autonomy which is central, rather than the gender or status of the victim. 

In each case then we can see that while rape is regarded as a serious wrong, the nature of the underlying wrong is conceived of differently. This surely illustrates the central point that the wrong cannot be understood as an intrinsic quality of the conduct, but is linked to the aims of the criminal law which in turn shapes the scope of the legal protection.