The Privilege Against Self‐Incrimination As To Adultery Should It Be Abolished?
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00597.x |
| Published date | 01 May 1960 |
| Date | 01 May 1960 |
THE PRIVILEGE AGAINST SELF-
INCRIMINATION
AS
TO ADULTERY
SHOULD IT
BE
ABOLISHED?
OF
all the various matrimonial offences, there is only one
in
respect
of which the parties can claim privilege against self-incrimination,
and that only to a limited degree, namely, adultery.
It
is hard
to discover what the justification is for this peculiar privilege, and
the object of this article
is
to
show that such privilege
is
quite
unnecessary, that is, it has
no
basis in reason, it
is
anomalous,
an
anachronism, operates capriciously and unjustly and, in the form
in which
it
exists,
is
absurd and should
be
abolished.
At
the present time,
so
far as the High Court is concerned, the
relevant section is section
82
(8)
of the Matrimonial Causes Act,
1950,l
which reads as follows:
“
The parties to
any
proceedings instituted in consequence
of adultery and the husbands and wives of
the
parties shall be
competent to give evidence in
the
proceedings,
but
no
witness
in any
such
proceedings, whether a party
thereto
or
not,
shall
be
liable to
be
asked
or
be
bound to answer any question
tending to show that
he
or
she
has been guilty of adultery
unless
he or
she
has
already given evidence in the same proceed-
ings in disproof
of
the
alleged adultery.”
So
far as inferior courts are concerned, and in particular the
magistrates’ courts, the relevant provision is section
8
of
the
Evidence Further Amendment Act,
1869,a
which reads as follows:
‘(
The parties to any proceeding instituted in consequence
of adultery, and the husbands and wives of
such
parties, shall
be competent to give evidence
in
such
proceeding:
Pmoided
that
no
witness in any3 proceeding, whether a party
to
the
suit
or
not, shall
be
liable to be asked
or
bound to answer any
question tending
to
show that he
or
she has been guilty of
adultery, unless
such
witness
shall
have
already given evidence
in the same proceeding in disproof of
his
m
her
alleged
adultery.’’
Although the sense is practically identical in both sections, there
have been verbal alterations which are indicated by the words
in
italics.
1
14
Gm.
6, c. 25.
2
32
&
33
Vict. c.
68.
3
The
word
“
such,” which
is
absent
here
but
eppesrs
in
the
corresponding
See
Rsyden,
7th
ed.,
474,
place
in
8.
32,
sbove,
wag
read
into the
section.
note
(b).
275
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