Did you know that “my husband made me do it” is a valid statutory defence in criminal law? Welcome to the defence of marital coercion, or as us folks would call it, “your honour, men are trash.” Quite literally.
Section 19 of the Kenyan Penal Code (Cap 63, Laws of Kenya) provides as follows:
“A married woman is not free from criminal responsibility for doing or omitting to do an act merely because the act or omission takes place in the presence of her husband; 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.”
The same is contained in section 17 of the Ugandan Penal Code (Cap 120) and section 20 of the Tanzanian Penal Code (Cap 16) . If only regional integration were as simple as the “Ctrl +C” and “Ctrl +V” function with minor amendments to show that you put in the work.
The rationale behind this is quite sexist. At common law, the wife is considered one with the husband and from another point of view, she is considered as one of his vassals. Thus, a wife would be immune from criminal responsibility as she is presumed to be under her husband’s domination. You can read a lengthier explanation here.
For this defence to work, the following must be proven:
- The woman was validly married at the time
Section 3(1) of the Marriage Act 2014 defines a marriage as “the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.” Therefore, if you’re in a come-we-stay, civil partnership or any other kind of relationship that is not marriage, this defence will not work. See R v Ditta, Hussain and Kara  Crim. L. R. 42, CA
2. It has to be used by a woman.
The Act clearly states that the defence is only available to married women; therefore the husband cannot claim it for himself.
3. The husband should be present, or if not, he should be in such close proximity to the wife so as to compel her to commit the crime
The presence of the husband is an ingredient for this defence to work; however, it is not necessary for the husband to be physically present. All the wife needs to prove is that the husband was near enough for the wife to be under his immediate influence and control.
It is also important to note that coercion need not be by means of physical force, it could be through moral coercion as well. In R v Shortland  1 Cr. App. R. 116, it was held that the wife had to prove that her will was so overborne by the wishes of her husband that she was forced unwillingly to participate in the offence.
Obviously, this defence has no place in our statute books. There can surely no longer be any justification for a law that treats women as if they are more susceptible to this kind of coercion than men and treats wives as being more coercible than unmarried women. Indeed, in R v Gary Richman and Ann Richman  Crim LR 507, supra, where a wife was convicted after claiming coercion, the learned judge commented that “…coercion dated from earlier times and modern wives are not like Saxon wives.”
The United Kingdom repealed section 47 of the Criminal Justice Act 1925 (identical to our section 19 of the Penal Code) this vide section 177 of the Anti-social Behaviour, Crime and Policing Act 2014
We can only hope the Kenyan Parliament can follow suit, though we recognise that this is a bit too much to ask.