Section 407 A of the Crimes Act 1900 provided a presumption that if a woman commits a crime in the presence of her husband, then she must have committed the crime under coercion of her husband. This presumption has since been abolished.
This means that it can no longer be presumed that when a woman commits a crime and she commits it in the presence of her husband, that she was coerced by her husband to commit it.
Even when the presumption no longer exists, however, the defence of marital coercion still exists. When a woman is charged with a criminal offence, she may still defend herself by raising the defence that she committed the crime because she was coerced by her husband. What was abolished was the presumption but the defence still exists.
A presumption does not need to be proven. Under Section 407 of the Crimes Act 1900, the woman need not prove that her husband coerced her to commit the crime: it was presumed. The duty to prove that the wife committed the crime on her volition and without coercion from the husband will rest upon the prosecution.
Only proof beyond a reasonable doubt will override the presumption as the voluntariness of the wife’s criminal act is also an element of the crime she was charged with.
When the presumption has abolished the defence of marital coercion was not abolished. It is still possible to use marital coercion as a defence. The only effect of the abolition of the presumption is that the wife now has the burden of proving the elements of the defence of marital coercion. She must prove first of all the fact of her marriage. She then has to prove the fact of coercion and that the coercion was exerted upon her by her own husband.
When the presumption has abolished the defence of marital coercion became an ordinary legal defence that needs to be proved so that it will raise the reasonable doubt on the voluntariness of the act of the wife.
The defence is similar to the legal concept of duress except that under duress, the person under duress must have been afraid of bodily harm or injury. Under coercion, the woman need not fear for her life or for her physical safety.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.