Legal Case Summary
R v R [1992] 1 AC 599
Attempted Rape – No Consent – Husband and Wife – s1(1) Sexual Offences (Amendment) Act 1976 – Marital Rape Exemption – Common Law Fiction
Facts
The defendant married his wife (complainant) in August 1984. After the marriage did not work, she moved out in October 1989 and took her son to live with her parents. At the time of the incident in November 1989, they were separated but not legally divorced. The defendant broke in to her parents’ home and attempted to have sexual intercourse with the complainant who did not consent. The defendant was charged with attempted rape under s1(1) of the Sexual Offences (Amendment) Act 1976 and with assault occasioning actual bodily harm under s47 Offences Against the Person Act 1861.
Issues
The defendant appealed his conviction on the issues of attempted rape and consent against s1(1) of the Sexual Offences (Amendment) Act 1976. 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.
Decision/Outcome
The court upheld his conviction for attempted rape. There was no marital rape exception under English law and this was a ‘common law fiction’ that existed. The concept of irrevocable consent of a wife to her husband was classed as unacceptable concept in modern times; each is seen as equal partners in a marriage. The relationship between the parties to rape does not matter; rape is rape. The word ‘unlawful’ that is included in the definition of rape under the Sexual Offences (Amendment) Act 1976 was said to include marital rape.
Updated 20 March 2026
This case summary remains broadly accurate. R v R [1992] 1 AC 599 correctly abolished the marital rape exemption in English law, confirming that the common law fiction of irrevocable spousal consent had no place in modern law. The House of Lords’ decision was subsequently upheld by the European Court of Human Rights in SW v United Kingdom (1995) 21 EHRR 363, which confirmed that the removal of the exemption did not violate Article 7 ECHR (no punishment without law).
One point worth noting for clarity: the offence of rape is no longer governed by the Sexual Offences (Amendment) Act 1976. That Act was repealed and replaced by the Sexual Offences Act 2003, which now provides the principal statutory framework for rape and sexual offences in England and Wales. Under s.1 of the 2003 Act, there is no marital exemption, and the legal position confirmed in R v R is fully preserved in the current legislation. The 2003 Act also removed the word ‘unlawful’ from the statutory definition of rape, making the position even clearer. Readers should therefore be aware that references in the article to the 1976 Act reflect the law as it stood at the time of the case, not the current statutory position.
