NCJ Number
57842
Date Published
1975
Length
34 pages
Annotation
AUSTRALIA'S CRIMINAL CODE HAS MANY RULES WHICH AFFORD A DEFENSE TO HUSBANDS AND WIVES FOR ACTS WHICH WOULD BE PUNISHABLE IF DONE BY UNMARRIED PERSONS. ABOLITION IS RECOMMENDED FOR SOME; OTHERS ARE UPHELD.
Abstract
THE LAW REFORM COMMISSION OF AUSTRALIA EXAMINED FIVE SECTIONS OF THE CRIMINAL CODE WHICH PROVIDE FOR SPECIAL TREATMENT FOR MARRIED PERSONS. IN GENERAL, IT RECOMMENDS ABOLISHING RULES WHICH REFLECT THE EXTREME SUBJECTION OF WIVES IN EARLIER TIMES. HOWEVER, IF THE RULE SUPPORTS THE STABILITY OF MARRIAGES BY RECOGNIZING THE NEED FOR LOYALTY, COOPERATION, AND CONFIDENTIAL COMMUNICATION, THE COMMISSION RECOMMENDS RETENTION AND EXTENSION. IT IS HELD, FOR EXAMPLE, THAT A WIFE WHO COMMITS A CRIME IN THE PRESENCE OF HER HUSBAND HAS NOT NECESSARILY BEEN 'COERCED' BY HIM. COERCION MUST BE PROVED BY OTHER MEANS. HOWEVER, A WIFE WHO SHELTERS HER HUSBAND, EVEN AFTER KNOWING THAT HE HAS COMMITTED A FELONY, CANNOT BE CHARGED WITH 'HARBORING A FELON'. IT IS RECOMMENDED THAT THIS PROTECTION BE EXTENDED TO HUSBANDS WHOSE WIVES HAVE COMMITTED A FELONY. IT IS ALSO RECOMMENDED THAT THE FAILURE OF ONE SPOUSE TO INFORM AGAINST THE OTHER SHALL NOT BE PUNISHABLE AS A MISPRISON. THE HANDLING OF STOLEN PROPERTY IS A MORE COMPLEX ISSUE. A WIFE CAN RECEIVE STOLEN PROPERTY FROM HER HUSBAND AND NOT KNOW IT. HOWEVER, THE MARITAL RELATIONSHIP ITSELF SHOULD NOT BE AN AUTOMATIC DEFENSE TO A CHARGE OF HANDLING STOLEN PROPERTY. THIS RULE SHOULD ALSO BE EXTENDED TO HUSBANDS WHO HANDLE PROPERTY STOLEN BY WIVES. THE LONG ESTABLISHED RULE THAT A MERE AGREEMENT BETWEEN HUSBAND AND WIFE ONLY CANNOT AMOUNT TO A CRIMINAL CONSPIRACY OUGHT TO BE REAFFIRMED AND A CORRESPONDING RULE SHOULD BE ENACTED THAT A MERE COMMUNICATION BETWEEN HUSBAND AND WIFE CANNOT AMOUNT TO THE CRIME OF INCITEMENT. THE HISTORY OF EACH PROVISION IS TRACED BACK TO COMMON LAW WHILE FOOTNOTES GIVE CASE CITATIONS. (GLR)