Division 3 under Part II (Offenders) of the Crimes Act Victoria (1958) is about the criminal liability of married persons. This Division consists of the following Sections:
Section 336: Marital Coercion
Subsection (1) under Section 336 related to criminal liability of married persons states that any assumption that an offence committed by a wife in the presence of her husband is committed under his coercion is hereby abolished.
Secondly, if a woman faces charges of an offence (other than treason or murder), the woman will have complete defence against the charge if her action/inaction was because of coercion by a man she was married to.
Moreover, for this section, the meaning of coercion is pressure that is enough for a woman to conduct in the manner charged. The pressure could be either in the form of threats or in any other form.
The Section also states that the accused shall bear the burden of providing evidence to prove that she conducted herself in that manner due to coercion by her husband. Therefore, it will be the onus of the prosecution to prove that the action/inaction of the woman was not a result of coercion by her husband.
Note that this section does not affect the law relating to the defence of duress.
Section 337: Misprision
Section 337 under criminal liability of married persons is on misprision. Misprision refers to the intentional concealment of knowledge about an act involving treason or felony.
A married person shall not become guilty of misprision by concealing or failing to disclose the commission of an indictable offence by his or her spouse, or by the spouse and another party or parties, nor by concealing or failing to disclose facts which might lead to the apprehension of the spouse, or the spouse and such other or others, in respect of the offence.
Section 338: Accessory After the Fact
A married person shall not become an accessory to any indictable offence by:
- receiving,
- relieving,
- comforting or
- assisting his or her spouse, or the spouse and another person or persons,
though with knowledge that the spouse, whether alone or with the other person or persons, has committed an offence and though the purpose of what is done is to enable the spouse, or the spouse and the other person or persons, to escape being apprehended, tried or punished.
Section 339: Conspiracy and Incitement
Subsection (1) states that a married person shall be criminally responsible for incitement or conspiracy to commit treason or murder and for any offence specified in section 4 as if he or she were unmarried.
Moreover, this Section states that a married person will not be responsible for conspiracy with his/her spouse alone, not for incitement of his/her spouse to commit a criminal offence.
Lastly, nothing in subsection (2) shall affect the liability of a married person as a principal offender in any offence except conspiracy or incitement.
The Presumption of Coercion
According to this journal article, as per common law in the past, the presumption was that if a woman committed an offence in the presence of her husband, she did so due to coercion from him. This was applicable for any charge except treason or murder. As seen above under Section 336 of Victorian Crimes Act, this has since been abolished.
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