Authored By: Maya Skerritt
University of the West of England (UWE), Bristol
Case Citation & Basic Information
Full Case Name: Regina Respondent v R. Appellant
Citation: [1992] 1 AC 599
Neutral Citation: [1991] UKHL 12
Court: House of Lords
Bench Composition: Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Ackner and Lord Lowry
Date of Judgment: 23rd October 1991
Relevant Provisions/Statutes: Sexual Offences (Amendment) Act 1976
Introduction
The case of R v R stands as a landmark moment in English criminal law, where the House of Lords abolished the long-standing marital rape exemption. Before 1991, English law legally recognised marital rape, rooted in Sir Matthew Hale’s 17th century assertion that a wife gave irrevocable consent to sexual intercourse upon marriage. However, this foundational case reshaped the law of sexual offences, aligning it with modern principles of autonomy and equality. It is noteworthy for its clear nullification of outdated common-law practices, and for affirming that consent can be withdrawn at any time.
Facts of the Case
The case involves a husband (appellant/defendant) and wife (complainant/victim), who married in 1984 and had one child. By 1989, they began to have martial issues, subsequently leading to the wife leaving the matrimonial home. On October 21st, 1989, the wife and child decided to move into her parent’s house, leaving behind a letter stating her intention to petition for divorce from her husband. Although, the husband later indicated he also intended to seek a divorce, but no formal legal separation or court order existed, meaning the marriage remained legally intact.
On the 12th of November 1989, the husband decided to force entry into the wife’s parents’ home while the parents were away. He confronted his wife and attempted to have sexual intercourse with her, without her consent. During which attempt, he assaulted her by physically restraining her and squeezing her neck. On the 30th of July 1990, the husbands’ actions were found to form the basis of the charges for attempted rape and assault occasioning actual bodily harm. The appellant then filed an appeal with the permission of the Criminal Division of the Court of Appeal against the charges made by the court.
The material facts relevant to the legal issues are:
The parties were still legally married, though living separately
The wife had withdrawn consent and made clear her intention to end the relationship
The husband used force to attempt sexual intercourse
The incident occurred without any legal separation
Legal Issues
Legal Issue 1: Whether a husband could be guilty of rape within marriage or attempted rape when the parties when the parties were still legally married but living apart?
Legal Issue 2: Whether consent to sexual intercourse could be withdrawn during an ongoing marriage?
Legal Issue 3: Whether the martial rape exemption had been progressed by modern statutory developments, particularly the Sexual Offences (Amendment) Act 1976, and if so, should the criminal law continue to justify such a doctrine?
Arguments Presented
Petitioner/Appellants Arguments
When in court, the appellant raised several key arguments to appeal his conviction of attempted rape, all centred on preserving the marital rape exemption. His core argument was that a husband could not legally be guilty of raping his wife. Therefore, he claimed that the criminal law offence of rape simply did not apply within marriage, meaning his prior actions did not constitute an attempted rape. The appellant relied heavily on Section 1(1) of the Sexual Offences (Amendment) Act 1976, asserting that the statue implicitly preserved the marital rape exemption. He argued that because the Act did not expressly abolish the exemption, then the courts were legally bound by a longstanding precedent that only Parliament had the power to remove.
The appellant also relied on earlier case law that had recognised limited expectations, arguing that these exceptions proved the general rule still existed unless such formal steps were taken. For example, in the case of R vs Clarke [FIND CITATION + DATE]
R v Clarke
R v Kowalski
Respondent’s Arguments
Counter-arguments and alternative legal interpretation presented
Precedents distinguished or relied upon in defence
Defence of the challenged action, legislation, or decision
Court’s Reasoning and Analysis
When in court, the Judge rejected the husband’s interpretation of Section 1(1) of the Sexual Offences (Amendment) Act 1976, that the offence of rape did not exist where the accused was married to the complainant. Therefore, the husband pleaded guilty to attempted rape and assault occasioning actual bodily harm, resulting in his conviction. On the husband’s appeal against his conviction of attempted rape, the Court of Appeal (CoA), dismissed his claim.
Judgement and Ratio Decidendi
He was sentenced to three years’ imprisonment for the attempted rape and 18 months’ imprisonment concurrent for the assault.
Critical Analysis
Significance of the Decision
The case demonstrated to English society that the criminal law system aims to protect all individuals, regardless of marital status.
Implications and Impact
Critical Evaluation
Conclusion
Reference(S):
Case Law
R v R [1992] 1 AC 599 (HL)
Statutes
Sexual Offences (Amendment) Act 1976
Secondary Sources
