Authored By: Charlotte Jones
Case identification
- The court where the case was heard- House of Lords
- Judgment date- October 23, 1991
- Citation- UKHL12
- Claimant- The Wife
- Defendant- The Husband
- Nature of the case- Criminal case
Procedural History
Initial Action- The wife initiated the case, which took place at Leicester Crown Court. She accused her husband of attempting to rape her whilst strangling her. The husband was charged on indictment with two counts, the first being rape and the second was assault occasioning actual bodily harm.[1] The main issue challenged was the husband’s appeal to the Court of Appeal (Criminal Division), where he stated that it is not against the law for a husband to rape his wife due to the marital rape exemption. Here, they dismissed his appeal.[2] Leave was granted to the husband to appeal to the House of Lords, with the question being, ‘Is a husband criminally liable for raping his wife?’[3]
Lower court decision- The husband appeared before Judge Owen J. at Leicester Crown Court on July 30, 1990.[4] The husband was charged on indictment with two counts, the first being rape and the second was assault occasioning actual bodily harm.[5] The husband claimed he could not be guilty of raping his wife under the law (the marital rape exemption). However, Owen J. rejected the husband’s submission. He stated that consent was capable of being withdrawn by the agreement of the parties or by the wife if she removed herself from cohabitation and indicated that consent to sexual intercourse had been terminated. He stated that this had happened in this case.[6]
The defendant pleaded guilty to both charges. He was sentenced to three years imprisonment for the count of attempted rape and 18 months imprisonment for the assault occasioning actual bodily harm.[7]
Appeal- The husband appealed his conviction of attempted rape. The appeal was taken to the Court of Appeal (Criminal Division).[8]
Appellate court position-The husband appealed his conviction on the issue of attempted rape and consent. He argued on the grounds of the marital rape exemption that existed under the common law of England and the principle that a husband could not rape his wife, as the contract of marriage gave irrevocable consent.[9]
Facts of the case
Background context- The defendant and his wife were married in August 1984, but their marriage did not work out. In October 1989, she moved out and took their son to live with her parents. Although the couple had separated, they were not legally divorced. At about 9 pm on 12th November 1989, the defendant broke into his wife’s parents’ home, and the parents were out at the time. The husband attempted to engage in sexual intercourse with his wife. While doing this, he assaulted her by squeezing her neck with both hands.[10] The appellant was arrested and interviewed by police officers, during which time he admitted the facts to them. Later, the parties got divorced.[11]
Key issue- The main issue is whether a husband can be convicted of rape if he engages in sexual intercourse with his wife without her consent.
Arguments by the defendant- The husband argued that he could not be convicted of rape or attempted rape of his wife, where she had withdrawn her consent to sexual intercourse. He claimed that a husband could not be convicted of raping his wife as she had given consent to sexual intercourse through the contract of marriage, which she could not withdraw.[12]
Arguments by the claimant- The claimant argued that it should not be legal for her husband to rape or attempt to rape her, and he should be convicted of it.[13]
Legal Principles- Consent is a choice everyone must freely and willingly agree to. Sex without consent is considered rape.[14]
Legal questions- Is the exemption of marriage outdated, or is it still applied in cases where marital rape exists, which makes it legal? Can a husband legally rape his wife?
Legal issues
Primary legal issue- Is a husband criminally liable for raping his wife?
Sub issues- Can “unlawful” sexual intercourse also happen inside of marriage?
Arguments
Appellants arguments- The defendant appealed his conviction of rape, stating that the judge made the wrong decision as he believed that when the wife entered the contract of marriage, this gave him consent to have intercourse with her whenever he wanted. He thought that consent could not be revoked either by order of a court or by agreement between the parties.[15]
The legal reasoning behind the husband’s belief stems from the marital rape exemption. For many years, society held the view that a husband could not rape his wife.[16] This belief has been reflected in court and marital rape cases for centuries, except in circumstances involving her death or a separation order.[17]
The earliest written legal source on marital rape was from Sir Matthew Hale’s treatise, “History of the Pleas of the Crown,” published in 1736, which stated that a husband could not be found guilty of rape due to the “matrimonial consent” his wife had given him.[18] This shows that through the act of marriage, the wife consented to sexual intercourse at any time.[19] John Fredrick Archbold echoed this in 1822.[20] At that time, women were seen as men’s property.[21] In R v Clarence,[22] a husband had sex with his wife without her consent and knowingly infected her with gonorrhoea. This conviction was quashed because the husband had an “irrevocable privilege” to have sex with his wife whenever he wanted due to being married. This shows that the courts found marital rape was legal in these times.
However, marriage in modern times is seen as a partnership between two equals, and the wife is no longer seen as subservient to her husband.
Respondent’s arguments- The wife argued that her husband should be convicted of attempted rape against her. She believed that that a wife gives ‘irrevocable consent’ to sexual intercourse with her husband under all circumstances is quite unacceptable in modern times. She agreed with Kennedy J, who referred to marital rape being legal as an ‘ancient law.’
In the case of R v Chapman,[23] over 30 years before R v R, the court found that the word ‘unlawful’, when used to qualify the phrase ‘sexual intercourse,’ was mere surplusage and held that it should be so treated in section 1 of the Sexual Offences (Amendment) Act 1976.[24] Thus, there was no statutory obstacle in the way of holding that in modern times the marital exemption of rape forms no part of the law in England.[25]
In Scotland, the exemption for marital rape had been abolished before the case of R v R. In the case of R v C,[26] which occurred in the same year as R v R, also in England, Judge Simon Brown felt it was appropriate to follow the Scottish example and ruled that there was no marital rape exemption in this country. This indicates that other cases around 1991 were also determining that there was no marital rape exemption in England.[27]
Court Analysis
In October 1991, in the House of Lords, Lord Keith of Kinkel delivered the leading speech, which was supported unanimously by the other four lords. They ruled that the marital rape exemption was a common law fiction and declared that in modern times the supposed marital exemption in rape forms no part of the law of England.[28]
Before the lords reached this conclusion, they discussed the wording of the Sexual Offences (Amendment) Act 1976, s.1(1).[29] This Act referred to rape as a man having “unlawful” sexual intercourse with a woman without her consent. Previously, it was submitted that the word “unlawful” means outside of marriage, a position upheld in the case of R v J,[30] only a year earlier. In the present case, the Lords stated that the term “unlawful” was therefore unnecessary in the Act. It was unrealistic to describe extramarital sexual intercourse as unlawful, particularly as unlawful typically meant contrary to some law or enactment or without lawful justification or excuse.[31] The conclusion was that the marital exemption no longer existed, and the wording of the 1979 Act did not affect the result.[32] This indicates that having sexual intercourse with any woman without her consent is illegal. Lane LJ stated that “this is not a creation of a new offence; it is the removal of a common-law fiction which has become anachronic and offensive.”[33]
One reason why the exemption was abolished in R v R is that just before the trial, the Law Commission published a working paper on rape in a marriage where he proposed “the abolition of a man’s immunity for rape committed by him upon his wife.”[34] This could have been the final push for the change in the law.[35]
In the present case, Lord Justice-General Lord Emslie, stated ‘Nowadays, it cannot seriously be maintained that by marriage, a wife submits herself irrevocably to sexual intercourse in all circumstances.”[36] He noted that before the second half of the 20th century, women were seen to have subjected themselves to their dominion in all things. However, after the second half of the 20th century, laws changed drastically for women. For example, the Abortion Act of 1967[37] and the Equal Pay Act of 1970[38] came into force, giving women more freedom, choices and equality. Feminists have worked relentlessly since the 1960s to have the marital rape exemption overturned ensuring that married and unmarried women are all protected from rape.[39] These activists help to change the law.
Today, a woman is not obligated to obey her husband or engage in sexual intercourse with him against her will. Laws and common practices are continually evolving with society, and the illegality of marital rape reflects modern societal views.
Significance
Impact on future cases- This case impacts future cases because husbands can be criminally liable for engaging in sexual intercourse with their wives without their consent.
Legal clarity- This case brings clarity to the law by removing the marital rape exemption, so now a man who rapes his wife can be convicted. Also, as it was clarified that “unlawful” sex can be inside a marriage (with the word “unlawful” now being removed), it shows that any sex without consent by any man to any woman is rape.[40]
Public interest- This ruling allows women and men to be viewed equally in a marriage. It also enables married women to prosecute their husbands for rape. It also provides rape in a marriage to be seen as just as traumatic as rape outside of marriage.[41]
Subsequent developments
Legislative actions – R v R led to a revision of the Sexual Offences Act 1956[42] and the abolition of the marital rape exemption being added to the Act in 1994. Also, by 1994, the Public Order Act[43] and the Criminal Justice Act[44] removed the word ‘unlawful’ from the definition of rape to reflect that rape can occur inside marriage too. This alteration allows married women to bring action against their husbands for rape.
Further legal cases- In R v Crooks[45] the Court of Appeal rejected an appeal made by the defendant for the rape of his wife that took place in 1970. In R v Lanskey[46], the Court of Appeal dismissed an appeal against convictions for two rapes that took place in 1988 and 1991. These decisions demonstrate that, following R v R, husbands can be convicted of rape for incidents that occurred before the abolition of the marital rape exemption.
Further problems- Many women have expressed concerns that ending husbands’ right to sex might increase the risk of domestic violence.[47] Also, 35% of people over 65 still believe that non-consensual sex with a spouse is not rape, so many of these people would not report the offence if it happened to them.[48]
The government has stated that proving marital rape can be difficult, as it often comes down to one person’s word against another’s. Also, there are concerns about false accusations against husbands, which can be challenging to prove.[49]
Government Actions- The government announced a £257 million fund for refuge services across the UK to assist women who have been sexually abused by their partners and need a safe place to go.[50]
Conclusion
In conclusion, the case of R v R is important because a husband can now be criminally convicted of raping his wife. This reflects societal changes where women are viewed as equals to men in marriage. Married women are more protected by the law.
References
Primary sources
Cases
R v R [1991] UKHL 12
R v Clarence (1888) 22 QBD 23
R v C (1991) 1 All ER 755
R v Chapman (1959) QB 100
R v J (1991) 1 All E.R 759
R v Crooks (2004) EWCA Crim 292
R v Lanskey (2003) EWCA Crim 1512
Legislation
Sexual Offences (Amendment) Act 1976
Abortion Act 1967
Equal Pay Act 1970
Sexual Offences Act 1956
Public Order Act 1986
Criminal Justice Act 1967
Law reports
R v R [1991] 2 All E.R 257
Regina Respondent v R. Appellant [1991] 3 W.LR 767
R v R [1991] 2 W.L.R. 1065
Secondary sources
Journal articles
Laid V, ‘Reflections on R v R’ (1992) 55(3) 386
Wake N, ‘Political Rhetoric or Principled Reform of Loss of Control? Anglo- Australian Perspectives on the Exclusionary Conduct Model’ (2013) 77(6) 512
Harrison K, ‘No means No- that’s final’ (1991) 141(6526) 1481
Ireland E, ‘Re-examining the Presumption: Coverture and ‘Legal Impossibilities’ in Early Modern English Criminal Law’ (2022) 43(2) 187
Featherstone L, ‘That’s what being a woman is for’: opposition to marital rape law reform in late twentieth century Australia’ 19(1) 87
Reports
The Law Commission, ‘Criminal Law Rape within Marriage’ (1992)
The Law Commission, ‘Legislating the Criminal Code: Criminal Law: Rape within Marriage’ (1990)
Ending Violence Against Women Coalition, ‘Attitudes to Sexual Consent: Research for The End Violence Against Women Coalition by YouGove’ (December 2018)
Books
Rees T, Criminal Lae Review’ (Sweet &Maxwell, 1986)
Hale M, ‘History of the Pleas of the Crown’ (1st ed, Sweet & Maxwell, 1736)
Seago J P, ‘All England Annual Review’ (LNUK, 1991)
Frederick J, ‘PleaKate Hunt and Maddy Travis, ‘Criminal Law Review’ (Sweet & Maxwell, 2024)
Hunt K and Travis M, ‘Criminal Law Review’ (Sweet & Maxwell, 2024) 154
Hasda, ‘Contest and consent: A legal history of marital rape’ (2000) 88 California Law review 1373
Websites
Crown Prosecution Service, ‘Rape and Sexual Offences – Chapter 6: Consent’ (cps.gov.uk, updated 13 December 2024) < https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent > 21 December 2024
Department for Levelling Up, Housing and Communities and Felicity Buchan, ‘£257 million fund to help over 70,000 victims of domestic abuse’ (www.gov.uk, 12 December 2022) < https://www.gov.uk/government/news/257-million-fund-to-help-over-70000-victims-of-domestic-abuse#:~:text=An%20estimated%2070%2C000%20victims%20of,shelters%20can%20provide%20vital%20support. > accessed 22 December 2024
Crown Prosecution Service, ‘Preventing the Court of Justice and Wasting Police Time in Cases involving Allegedly False Allegations of Rape and / or Domestic Abuse’ (cps.gov.uk, April 2023) < https://www.cps.gov.uk/legal-guidance/perverting-course-justice-and-wasting-police-time-cases-involving-allegedly-false > accessed 21 December 2024
[1] Regina Respondent v R. Appellant [1991] 3 W.LR 767
[2] The Law Commission, ‘Criminal Law Rape within Marriage’ (1992) 1,1.
[3] Kate Harrison, ‘No means No- that’s final’ (1991) 141(6526) 1481,1481.
[4] R v R [1991] 2 W.L.R. 1065
[5] Regina Respondent v R. Appellant [1991] 3 W.LR 767
[6] Vanessa Laid, ‘Reflections on R v R’ (1992) 55(3) 386,397.
[7] Regina Respondent v R. Appellant [1991] 3 W.LR 767
[8] Regina Respondent v R. Appellant [1991] 3 W.LR 767
[9] R v R [1991] UKHL 12
[10] Tom Rees, Criminal Lae Review’ (Sweet &Maxwell, 1986) 207.
[11] Regina Respondent v R. Appellant [1991] 3 W.LR 767
[12] Regina Respondent v R. Appellant [1991] 3 W.LR 767
[13] Regina Respondent v R. Appellant [1991] 3 W.LR 767
[14] Crown Prosecution Service, ‘Rape and Sexual Offences – Chapter 6: Consent’ (cps.gov.uk, updated 13 December 2024) < https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent > 21 December 2024.
[15] Regina Respondent v R. Appellant [1991] 3 W.LR 767
[16] The Law Commission, ‘Criminal Law Rape within Marriage’ (1992) 1,1.
[17] Regina Respondent v R. Appellant [1991] 3 W.LR 767
[18] Sir Matthew Hale, ‘History of the Pleas of the Crown’ (1st ed, Sweet & Maxwell, 1736) 629.
[19] Nicola Wake, ‘Political Rhetoric or Principled Reform of Loss of Control? Anglo- Australian Perspectives on the Exclusionary Conduct Model’ (2013) 77(6) 512,513.
[20] John Frederick, ‘Pleading and Evidence in Criminal Cases’ ( Sweet &Maxwell Ltd,1822) 529.
[21] Emily Ireland, ‘Re-examining the Presumption: Coverture and ‘Legal Impossibilities’ in Early Modern English Criminal Law’ (2022) 43(2) 187,187.
[22] R v Clarence (1888) 22 QBD 23
[23] R v Chapman (1959) QB 100
[24] Sexual Offences (Amendment) Act 1976 s1(1)
[25] Peter J Seago, ‘All England Annual Review’ (LNUK, 1991)
[26] R v C (1991) 1 All ER 755
[27] Peter J Seago, ‘All England Annual Review’ (LNUK, 1991)
[28] Regina Respondent v R. Appellant [1991] 3 W.LR 767
[29] Sexual Offences (Amendment) Act 1976, s.1(1)
[30] R v J (1991) 1 All E.R 759
[31] R v R [1991] 2 All E.R 257
[32] Tom Rees, ‘Criminal Law Review’ (Sweet & Maxwell, 1986) 208.
[33] R v R 1991 All E.R 257 at 266
[34] The Law Commission, ‘Legislating the Criminal Code: Criminal Law: Rape within Marriage’ (1990)
[35] Kate Hunt and Maddy Travis, ‘Criminal Law Review’ (Sweet & Maxwell, 2024) 154, 158.
[36] Regina Respondent v R. Appellant [1991] 3 W.LR 767
[37] Abortion Act 1967
[38] Equal Pay Act 1970
[39] Hasda, ‘Contest and consent: A legal history of marital rape’ (2000) 88 California Law review 1373
[40] R v R [1991] 2 All E.R 257
[41] The Law Commission, ‘Criminal Law Rape within marriage’ 1992
[42] Sexual Offences Act 1956
[43] Public Order Act 1986
[44] Criminal Justice Act 1967
[45] R v Crooks (2004) EWCA Crim 292
[46] R v Lanskey (2003) EWCA Crim 1512
[47] Lisa Featherstone, ‘That’s what being a woman is for’: opposition to marital rape law reform in late twentieth century Australia’ 19(1) 87, 89.
[48] Ending Violence Against Women Coalition, ‘Attitudes to Sexual Consent: Research for The End Violence Against Women Coalition by YouGove’ (December 2018) 1,3.
[49] Crown Prosecution Service, ‘Preventing the Court of Justice and Wasting Police Time in Cases involving Allegedly False Allegations of Rape and / or Domestic Abuse’ (cps.gov.uk, April 2023) < https://www.cps.gov.uk/legal-guidance/perverting-course-justice-and-wasting-police-time-cases-involving-allegedly-false> accessed 21 December 2024.
[50] Department for Levelling Up, Housing and Communities and Felicity Buchan, ‘£257 million fund to help over 70,000 victims of domestic abuse’ (www.gov.uk, 12 December 2022) < https://www.gov.uk/government/news/257-million-fund-to-help-over-70000-victims-of-domestic-abuse#:~:text=An%20estimated%2070%2C000%20victims%20of,shelters%20can%20provide%20vital%20support. > accessed 22 December 2024.
