24 March 2014

Yes, Virginia, You Can Steal From Your Spouse

Question: Can you steal from your spouse if you are still married?

This question comes up over and over and over again. Although it usually rises in the waning of a marriage as people are fighting over who gets the stuffed penguin they were given as a wedding gift, it also arises surprisingly often at an earlier stage of the marriage (thereafter often leading to the waning days of the marriage). So, I thought I'd try to clarify the issue.

Let's start with the common law that we took from England as we broke free. In common law, it would seem that the woman maintained her ownership of that realty she came into the marriage owning. Otherwise, the right of curtesy makes no sense. Under that right, upon the wife's death the husband took a life estate in property his wife brought into the marriage, but only if there were children born of the marriage.  I'll not delve further into that topic because it is exceedingly rare that real property is the subject of a larceny (hard to carry it away).

As for real property, let's go where every good American jurist goes to get our common law, Blackstone (Book 1 Chapter 15):

By marriage, the husband and wife are one person in law : that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband : under whose wing, protection, and cover, she performs every thing [. . .] Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. [. . . ] If the wife be indebted before marriage, the husband is bound afterwards to pay the debt ; for he has adopted her and her circumstances together.
Nothing too terribly surprising there. Back in the day, the husband had almost all the rights in a marriage and he took possession of every item of personalty his wife brought into the marriage or obtained thereafter. As "one person in law" the requirement that one take the property "of another" would seem to have made it impossible for married people to steal from each other.

However, Virginia changed all that a long time ago:

§ 55-35.  How married women may acquire and dispose of property 
A married woman shall have the right to acquire, hold, use, control and dispose of property as if she were unmarried and such power of use, control and disposition shall apply to all property of a married woman which has been acquired by her since April 4, 1877, or shall be hereafter acquired. Her husband's marital rights shall not entitle him to the possession or use, or to the rents, issues and profits, of such real estate during the coverture; nor shall the property of the wife be subject to the debts or liabilities of the husband.
So, by statutory creation, women and men while married have separate property rights. This all came about as part of the Married Woman's Act of 1876-77 and means women in Virginia have had a statutory right to own personal property while married since at least the passage of the statute. Of course, the converse of that is the fact that men now have separate personal property as well. The "one person in law" barrier was gone and spouses could no longer steal from each other with impunity.

Probably the earliest criminal case in which this may at least indirectly apply is Ambrose v. Commonwealth129 Va. 763 (1921). Ambrose was given a car to sell by the wife without the husband/owner's knowledge or permission. Without "one person in law", Ambrose was convicted of larceny. However, Ambrose is not as clean as one might wish. The Court does not mention § 55-35 and bases its reasoning on the fact that Ambrose and wife were eloping. Under the common law that opened up certain rights for the husband. Still, it's an early criminal case wherein the husband and wife clearly did not own the property jointly. If they did the fact that the wife gave it to Ambrose would have protected him from a larceny conviction because it's not larceny if an owner gives it to you willingly.

The case most often cited in this area is Stewart v. Commonwealth219 Va. 887 (1979). Stewart took his wife's car before a divorce was granted.  He tried to rely on the common law "one person in law" barrier and the Court shot him down relying on § 55-35. It concluded:
Marriage no longer gives a husband any legal interest in his wife's tangible personal property.. . . The purpose of the Married Woman's Act would be frustrated if a husband could steal with impunity from his wife, and we hold, therefore, that he may be prosecuted as any other thief for the larceny of her property. 
That's about as black and white as it can get. Still, there is confusion. Mostly this comes because everyone thinks of property owned during marriage as "marital property" subject to distribution during a divorce.  This of course, is a civil concept and it is not shared in criminal law. This has been addressed directly in McDuffie v. Commonwealth49 Va. App. 170 (2006).

In McDuffie the defendant took a car solely titled to and paid for by his wife without permission and wrecked it. He argued that he could neither be convicted of destroying another's vehicle nor of unauthorized use of another's vehicle. He claimed he had an ownership interest in the vehicle under the equitable distribution provisions of § 20-107.3, a statute laying out how property is distributed in a divorce proceeding. The Court rejects this argument stating: 
Any interest a spouse may have in marital property is an inchoate right that becomes vested only upon entry of a decree of equitable distribution in a divorce proceeding. Because no divorce proceeding was pending and, thus, no decree of equitable distribution had been entered with respect to the relative property interests of appellant and wife, appellant had only an inchoate and unvested interest, if any, in wife's automobile.
That draws the line when any personal property might become marital pretty clearly. Unless there's a decree of equitable distribution giving one spouse an interest in the property of another it does not exist and criminal charges involving the abuse or larceny of the property of another can go forward.

These cases can be everything from burglaries with the house cleaned out by one spouse all the way down to extremely minor thefts such as taking two cassette tapes. Ward v. Commonwealth, APR03, VaApp No. 2799-01-3 (U). Generally, they seem to involve a lot of car thefts. I think this is because the magistrates do not issue many low level warrants in this area, either from confusion over the difference between civil and criminal sides or just because they don't want to encourage every person getting a divorce to run to their office and charge their soon to be ex-spouse with stealing a broom, or hat, or dish towel.

1 comment:

Anonymous said...

Very nice legal analysis.