Is marital coercion a feminist defence?

The conviction of the former Mrs Huhne today for perverting the course of justice has put a spotlight on the defence she attempted to rely on, that of "marital coercion".  For many, the notion that a wife (but not a husband) can escape justice by claiming to be under her spouse's control when committing a crime is anachronistic and patronising, even offensive.  It recalls another age, when women lacked social and economic freedom, when a wife might indeed claim to be wholly dependent on her husband and subject to his overbearing will.  Today, however, we have feminism and equality. 

Joshua Rozenberg for example, thought it was "an extraordinary defence for any woman, let alone a former joint head of the government economic service", and points out that the Law Commission wanted to abolish the defence (found in the Criminal Justice Act of 1925) as long ago as 1977, a time when there was considerably less sexual equality than there is today. 

Last week, Rozenberg wanted to abolish juries because the first jury in the Vicky Pryce case failed to reach a verdict.  This week he seems to want to abolish a defence because the second jury didn't buy it. 

Well, that's one way of looking at it.  Viewed from another perspective, though, the defence of marital coercion is surely one of the most feminist laws on the statute book.  It recognises, after all, that in heterosexual relationships there is inevitably a power imbalance, and that in marriage, with its legal and historical baggage, that imbalance is likely to be especially great.  We may like to think that all that belongs in the past, but the evidence suggests otherwise.  As Jack O'Sullivan notes, even the most modern, right-on and egalitarian-minded couples tend to revert to stereotypical roles once they have children, such is the pressure of social expectation.

Dad gets "provider fever", works harder, and gains economic power over his partner – and enhanced relative power in the public realm. It's a disheartening reversal: a "patriarchal moment". Meanwhile, mum has her "matriarchal moment", winning domestic control, largely taking over the private and social realms. Ancient norms reassert themselves despite the couple's vows to do things a different way.

Men don't just (still) have more financial power, on average, than women, they are also bigger, stronger, more aggressive and dominant.  Again, I'm talking about the average man and the average woman here, but it's a significant average.  Domestic violence is overwhelmingly committed by men against women, and even without physical abuse women are more likely than men to be trapped in mentally abusive and controlling relationships. At least, that's what feminists tell us:

Feminist theory in domestic violence emphasizes gender and power inequality in opposite-sex relationships. It focuses on the societal messages that sanction a male’s use of violence and aggression throughout life, and the proscribed gender roles that dictate how men and women should behave in their intimate relationships (Pence & Paymar, 1993). It sees the root causes of intimate partner violence as the outcome of living a society that condones aggressive behaviours perpetrated by men, while socializing women to be non-violent.

Proponents of feminist theory acknowledge that women can also be violent in their relationships with men; however, they simply do not see the issue of women abusing men as a serious social problem, and therefore, does not deserve the same amount of attention or support as violence against women.

If we do indeed live in a society which condones aggressive behaviour by men and encourages women to be submissive, we should expect to see male criminals (who, I suspect, may be more violent and less receptive towards feminist messages of equality than the average male Guardian reader; just a guess) regularly using their physical dominance to overawe their wives.  We should expect the wives of such men to often aid and abet their crimes, not out of personal criminal intent but through fear, or because they are wholly under the thumb of the brutes they married. 

In a society in which women are habitually the victims of male supremacy and aggression, the defence of marital coercion remains not just plausibly relevant but also necessary. Even if you don't fully accept the radical feminist argument about the pervasiveness of the patriarchy with its prescribed gender roles and male privilege, you might still agree that such a social pattern persists to a greater extent among the criminal underclass. It's probably less relevant where the male criminal is a Lib Dem MP like Chris Huhne; perhaps this explains why the second Pryce jury declined to accept the defence. But that shows that the law is working, not that it is obsolete.

Far from being an offensive anachronism, the lack of balance in the law of marital coercion, its explicit privileging of women, is surely a sign of its radical and progressive nature. Unlike most laws, which pretend to objectivity ("everyone is equal before the law") while in truth representing the interests of white, heterosexual men, the defence of marital coercion recognises the unequal nature of society as a whole and the particular inequality of marriage, and in a very 21st century manner attempts to correct it.

There's only one problem I can see with this unimpeachably feminist line of thought.  The defence of marital coercion replaced an earlier, indeed ancient, principle which assumed that a woman always acted under the direction and control of her husband.  It was to this concept that Dickens' Mr Bumble gave the immortal retort that "If the law says that, then the law is an ass."  It was, in other words, an expression of patriarchy in law; at best, a form of legal gallantry, like holding open a door for a lady, that disguised condescension with courtesy. 

It's no real contradiction, though, that a system that oppressed women also wanted to protect them.  It merely shows that patriarchy was not necessarily uncivilised: that having conceptualised women as the weaker vessel, whose default position in relation to men was one of subordination and victimhood, it drew the logical inference that they were not necessarily responsible for their own actions, at least not when their husband was in the room.  The law needed to recognise this.

When discussing domestic violence, or sexual objectification, or the need to eliminate pornography and sex work, or rape conviction rates, or positive discrimination in the workplace, modern feminists often make precisely the same case.  Or so, at least, it often seems to me.