Definition
A counter-accusation made by a person accused of wrongdoing against the person who brought the charge. In legal contexts, recrimination operates primarily as a doctrine in divorce law: when a defendant in a divorce proceeding raises, as a bar to the plaintiff's claim, proof that the plaintiff has also committed a matrimonial offense — typically adultery, cruelty, or desertion — sufficient to independently support a divorce.
The doctrine rests on an equitable principle sometimes called compensatio criminis: a party who has themselves committed a marital wrong cannot obtain judicial relief on account of the other party's equivalent wrong. The plaintiff, being equally guilty, is left without a remedy.
In criminal law, the term carries a narrower and largely historical meaning: any counter-accusation made by an accused person against their accuser. At criminal law, recrimination generally does not excuse the accused or reduce punishment, since another person's guilt cannot negate one's own.
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Common Language
Modern common usage (Wiktionary): A counter or mutual accusation; the act of accusing in return.
Historical common usage (Webster's 1913): The act of recriminating; an accusation brought by the accused against the accuser; a counter accusation. "Accusations and recriminations passed backward and forward between the contending parties." — Macaulay.
The common meaning and the legal meaning share a surface similarity — both involve a counter-accusation — but diverge sharply in function. In ordinary usage, recrimination is simply the rhetorical act of accusing back; it carries no procedural consequence. In divorce law, recrimination is a formal affirmative defense that, if proven, historically barred the plaintiff from obtaining a divorce altogether, regardless of the merits of their own claim. The stakes attached to the legal term are entirely absent from the common one.
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Common Confusion
Recrimination is sometimes confused with condonation and connivance, the other classic fault-based divorce defenses. The distinctions matter: condonation is the plaintiff's forgiveness of the defendant's offense; connivance is the plaintiff's corrupt consent to the offense; recrimination is the plaintiff's independent commission of a separate (or the same) matrimonial wrong. A defendant might plead all three in the alternative, but they rest on distinct factual predicates. Researchers examining historical divorce records or pleadings should not assume that any of these terms is interchangeable with another.
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Core Elements
For recrimination to succeed as a divorce defense in the traditional fault framework, courts generally required:
1. The plaintiff has committed a recognized matrimonial offense — typically adultery, cruelty, or desertion, though the qualifying offenses varied by jurisdiction and era.
2. The offense would itself constitute sufficient grounds for divorce under the applicable law.
3. The plaintiff's conduct was not itself condoned, connived at, or instigated by the defendant.
4. The defendant raises the matter affirmatively, as a bar to relief rather than merely as a mitigating circumstance.
The California Civil Code formulation cited in Black's captures the essential structure succinctly: recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce.
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Why It Matters in Research
Recrimination is a doctrine tied almost entirely to the fault-based divorce era. Its practical importance collapsed with the widespread adoption of no-fault divorce across U.S. jurisdictions beginning in the late 1960s and accelerating through the 1970s. Researchers working in pre-no-fault divorce records — case files, reported opinions, legal periodicals, or treatise literature from roughly the mid-nineteenth century through the early 1970s — will encounter recrimination frequently, often as a live and outcome-determinative issue. Researchers working in post-no-fault materials will find it nearly absent except in historical analysis or in the small number of jurisdictions that retained fault grounds as optional or hybrid paths to divorce.
The doctrine also varied significantly in its strictness across jurisdictions and time periods. Some courts applied a rigid "clean hands" rule: any proven matrimonial offense by the plaintiff, however minor relative to the defendant's, barred the divorce entirely. Others applied a comparative rectitude standard, asking which party was more at fault and granting divorce to the less culpable one. These approaches produced genuinely different outcomes on identical facts. A researcher reading a historical opinion should identify which rule the court applied before drawing conclusions about the underlying conduct or the parties' legal positions.
The criminal law sense of the term — counter-accusation outside the divorce context — appears in older treatise literature but is rarely operative in modern doctrine. When Bouvier and Burrill use the criminal law framing, they are describing a descriptive reality (that accused persons make counter-accusations) rather than a rule with procedural bite.
Corpus researchers should also note that recrimination appears in ecclesiastical court records and English canon law sources predating American divorce statutes. The doctrine traveled into American law from English ecclesiastical practice, and its conceptual structure in early American cases often tracks that heritage closely.
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Historical Dictionary Support
The historical dictionaries are broadly consistent on the core definition and agree that the divorce law application is the primary legal meaning. Black's (both editions) and Rapalje & Lawrence define the term identically, tracking Wharton's formulation and the California Civil Code text. Bouvier gives the most doctrinally complete treatment, noting both the criminal law sense and the divorce defense sense, and correctly identifying that in criminal law the doctrine generally does not excuse the accused. Burrill provides the most etymologically grounded entry, tracing the term to the Latin compensatio criminis — a phrase that appears in some judicial opinions as a shorthand for the equitable rationale underlying the doctrine.
Anderson's entry is unhelpfully sparse, pointing only to related terms without substantive explanation. Researchers relying solely on Anderson's would miss the divorce law doctrine entirely.
None of the historical dictionaries address the comparative rectitude alternative to strict recrimination, which developed as a judicial modification of the harsher clean-hands rule. That development is better tracked through case law and secondary treatise literature than through the dictionary corpus.
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Jurisdictional Note
No-fault divorce statutes have rendered recrimination as an affirmative defense largely obsolete across U.S. jurisdictions. However, states that preserve fault grounds as an optional basis for divorce — or that allow fault to be considered in property division or alimony determinations — may retain some version of the doctrine in modified form. Researchers examining any specific jurisdiction should verify the current statutory framework before assuming that historical recrimination doctrine governs.
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Encyclopedia Cross-Reference
Law Mind Encyclopedia — Fault-Based Divorce Defenses
Law Mind Encyclopedia — Divorce: Historical Development
Law Mind Encyclopedia — Condonation
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