Recrimination

Recrimination refers to responding to an accusation with another accusation of one’s own; it amounts to a series of mutual accusations. This involves hurling accusations or insults back at the opponent in an argument. In law, recrimination is commonly seen in divorce cases. An example of recrimination might occur if a husband accuses his wife of certain misconduct within the marriage, after his wife has already made an accusation against him. This is done in an attempt to gain the upper hand in a divorce in certain jurisdictions. In essence, recrimination works to cancel out the other party’s accusations of fault. To explore this concept, consider the following recrimination definition.

Definition of Recrimination

Noun

1. An argument between parties who are blaming one another for the same problem.
2. The act of making a counteraccusation to someone’s accusation.

Origin

Early 17th century        French récrimination < Medieval Latin recriminationem (“to accuse”)

What is Recrimination

Recrimination is essentially a way of saying “right back at you,” when accusations and insults are being thrown around. As an example of recrimination, when person A makes an angry claim against person B, and then person B responds by lobbing an angry claim right back at person A, the argument escalates.

Typically, recrimination is seen in divorce cases, as these situations are ripe for contention, with one spouse making allegations of wrongdoing, and the other spouse lobbing tit-for-tat accusations right back. However, there are other situations in which recrimination exists, such as recrimination in the workplace, and recriminations with regard to racial tensions and police actions. These are certainly situations in which the placing and deflecting of blame, when something goes wrong, are common.

Recrimination in the Workplace

The workplace, like divorce court, sees many cases of recrimination. Recrimination in the workplace occurs when one employee lodges a complaint against a coworker, or even one of his superiors, then that coworker makes similar complaints about the original complainer. As an example of recrimination in this setting, if Lila complains that Mary is always late returning to work after lunch, Mary might attempt to spread the blame by pointing out that Lila spends hours each day on Facebook.

Standard practice dictates that such complaints are supposed to remain confidential, but word often gets around anyway, especially if the person being complained of is friends with the boss. In order to prevent recrimination in the workplace – which is essentially a form of bullying – employers must be more responsible when it comes to how they manage their complaint system. Employees should feel free to bring their complaints to the appropriate authorities without having to fear recrimination from their peers or superiors.

Similarly, because recrimination in the workplace is a two-way street, employers should treat both employees involved in the dispute with respect, and investigate the situation before deciding what to do about either complaint. After all, the complaint that is being made may, in itself, be some form of recrimination in a conflict that the superiors may not even know is going on.

According to a study by Australia’s Productivity Commission, workplace harassment claims tend to be more expensive than physical injury claims, because employees generally request more time off, so as to avoid having to work in a hostile environment. Not only does this impact companies as a whole, but the effects on employee morale can be just as substantial.

Recrimination in Police Actions

For examples of recrimination in police actions, one need only turn to the slew of recent cases in which a black man was killed by police officers, and the protests and rallies that have followed. Consider the September, 2016 case of Keith Lamont Scott, who shot and killed by police in Charlotte, North Carolina after his wife had specifically told police that he didn’t have a gun. The police claim they saw one in his possession. Then there’s the case of Eric Garner, who died after being put into a chokehold while resisting the police, after the cops had approached him on suspicion of selling “loosies,” which are single cigarettes from packs that do not carry a stamp tax.

Recrimination in police actions abound, as each “side” of the incidents works feverishly to blame the other, or to at least show that their own actions were reasonable, in that the other side did something wrong.

For example:

Michael is pulled over by police because his taillights are broken out. When the officer smells a strong odor of marijuana coming from the car, he asks Michael to get out of the car. Another officer sees a small baggie with dried leaves spilled out onto the center console of the car. As the officers attempt to place Michael under arrest, he begins fighting with them, and when he grabs the butt of one officer’s gun, trying to pull it from its holster, the other officer shoots Michael.

Michael had no weapons in his possession, and his family is outraged, accusing the police of excessive force, and making claims that they “murdered” Michael. The police respond, saying that the two officers only used deadly force after Michael had wrestled with them on the ground, then attempted to grab an officer’s gun.

The family argues that Michael was afraid, that he was likely thinking that the police kill black men, and so his attempt to get away, and the brawl were justified. Essentially, after the first allegation of wrongdoing is made by the family, the cycle of “well, he did this” is begun.

Recrimination in Divorce

Family law experts have seen recrimination as being one of the most dysfunctional aspects of fault-based divorces. This is because when you have two spouses who are openly committing adultery and accusing each other of same, then the claims cancel each other out, and a divorce cannot be granted on this ground.

While the family unit is broken beyond repair, and while both parties would certainly benefit from a divorce in this case, the court system is helpless to do anything about the situation once recrimination occurs. Unless the parties can come up with another ground on which they want to sue for divorce, then they are stuck together in a loveless marriage.

While this makes sense in theory, it cannot occur in practice, and that is why the recrimination doctrine has been amended to hold that if each spouse is guilty of offenses that vary widely in terms of their seriousness, then the spouse who is guilty of the lesser offense(s) will be found to be entitled to the relief requested.

Some jurisdictions have actually fought back against recrimination by formally abolishing it by statute when converting to a no-fault system. No-fault divorces are granted on the ground of “irreconcilable differences,” or an “irretrievable breakdown” of the marriage. New York is one of the remaining few jurisdictions that permit recrimination as a defense.

Differences Between Fault and No-Fault Divorces

Historically, people needed to have a valid reason to obtain a divorce, as the law didn’t allow them to simply walk away when they’d had enough. For centuries, divorce could only be sought by men, and even after the law was changed to allow women to seek a divorce, they had to prove that they had been subjected to cruelty, rape, or even incest in order to be taken seriously. With this in mind, it is easy to see why some women in particular may resort to recrimination because they may feel like they have to show exactly how they were wronged in order for the courts to hear them out.

In the U.S., each state has its own laws regarding divorce. For many years, anyone asking the court to grant a divorce was required to prove that the other party engaged in certain types of wrongdoing. For instance, abuse or cruelty, if proven, was sufficient grounds for divorce. Aggravation over the fact that one spouse is a slob, would not have been sufficient grounds. In what is referred to as a “fault divorce,” which spouse wronged the other matters.

This is where recrimination factors in. So, if a wife files for divorce, claiming that her husband has had an affair, the fault is his adultery. Depending on the circumstances surrounding the husband’s acts, the wife may be entitled to a greater share of the couple’s assets, and perhaps more spousal support (“alimony”). Recrimination occurs when the husband then argues that the wife had also had an affair, and that she should be held equally responsible for the breakdown of the marriage.

A fault divorce can be complex, as the parties must prove the wrongdoing they complain of. This requires the obtaining and presentation of evidence, testimony of witnesses, and other proof. Such divorces often tied up court resources in lengthy proceedings. As a result, states began adopting a no-fault divorce system, in which couples are allowed to get a divorce just because they cannot get along. In a no-fault divorce, it generally does not matter, at least to the court, who did the other wrong, so recrimination has been nearly abolished.

During divorce proceedings, most attorneys discourage their clients from engaging in recrimination, even if the other spouse is guilty. This is because it serves no purpose, other than to pointlessly drag out the litigation and drain both spouses’ bank accounts in legal fees. As of 2016, no states require fault to qualify for a divorce, but 22 states offer a choice between fault and no-fault divorce.

Recrimination Example in Divorce

In 1996, Marguerite Bakala became suspicious that her husband, Zdenek, was having an affair. When she confronted him about it, he became physically abusive, and she decided to move out. Two years later, Marguerite filed for divorce on the grounds of adultery and physical cruelty. She also asked that she be granted custody of the couple’s son, as well as child support, alimony, and half of the couple’s belongings.

Meanwhile, Zdenek had filed his own papers in response to Marguerite’s, claiming that he had learned that his wife was also having an affair, and that she was committing the same act she was accusing him of committing Marguerite in fact admitted to the affair, insisting that it had begun after she and Zdenek had already separated. Zdenek felt that she was just as wrong, which should cancel out her requests for support and other benefits. This case is an example of recrimination, as Zdenek was essentially saying “right back at you.”

When Zdenek didn’t show up to the trial, Marguerite was granted her divorce on the grounds of adultery. Although Zdenek appealed the ruling, claiming that the court should never have granted the divorce, because recrimination nullified her complaint of adultery, the court disagreed. The family court’s ruling was upheld by the appellate courts at each stage, as Zdenek tried to have the decision reversed.

Related Legal Terms and Issues

• Jurisdiction — The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.