I will start this essay by stating that it is relatively difficult to disagree with the statement in the question that until recently the development of the common law on rape within marriage followed a path which failed to properly reflect changing social values concerning the institution of marriage. There is no getting away from the fact that between Lord Justice Hale’s statement in the middle of the eighteenth century up until the groundbreaking case of ‘R v R’ in 1991 that the change was slow and sluggish and lacked the confidence and conviction that was needed in order to accelerate the process of changing paths. It was obvious that the path set by Hale had become well trodden, and it was particularly difficult for the followers to branch off the well trodden path and take a different route. It had also become needless for any follower to want to create a new path as there was a ready made path available in front of them. For the Judges of the cases post Hale’s statement, it was simply a matter of analogical reasoning and path dependency – similar facts and a well trodden path, which in their eyes made it a matter of common sense to follow precedent. Despite this, on the other end of the spectrum there was a substantially different factor to consider, which by the nineteenth century had engaged in a slight jog in the race for development and change, this being the social values concerning the institution of marriage. Despite being a relatively unimportant or undocumented factor at the time of Hale’s statement, by the twentieth century this factor was screaming for change. Women’s place in society had become equal to that of men. Men could no longer treat women like they used to and expect to get away with it, and on balancing this with the argument that marriage created an irrevocable consent to sexual intercourse, it was possible to see that the two factors just did not coincide. Mika Oldham emphasises that even the Law has a point of change, no matter how fast or slow the change happens: ‘Of course, law is not created in a vacuum and its changing parameters are often influenced by public pressures, particularly when the law is out of line with social norms’. Therefore, it is important to note that although the change was very slow, there are examples of the common law attempting to change paths throughout the twentieth century, which I will look at in further detail further on in this essay. In order to answer this question effectively, I will first give a brief definition and description of some theories that I will be referring to throughout the essay, namely analogical reasoning and path dependency. I will then proceed to analysing the development through case law chronologically, while highlighting and analysing any important details or changes along the way.
One theory I will be referring to throughout this essay is that of reasoning, and in particular reasoning by analogy. Mcleod provides a good definition of reasoning by analogy which reads: ‘The process of reasoning by analogy involves saying that, if a number of different things are similar to each other in a number of different specific ways, they are, or should be, similar to each other in other ways as well’. Despite this sounding like a relatively straightforward theory, I must point out that this can also be a very difficult and dangerous theory to base a decision on. Mcleod does go on to highlight the problem with reasoning by analogy which is ‘to identify which points need to be similar, and how similar they need to be’. Emily Sherwin in her article on analogical reasoning, despite defending its use, admits that ‘analogical reasoning is an unscientific practice with imperfect results’. Therefore it is important to bare this in mind when dealing with analogical reasoning. The main point to focus on here is the use of similarities and differences. If there are differences between the facts of cases then it is easier for the Judge, and more likely that he or she will allow the law to develop and change. The danger lies where there are similarities between the facts of cases. In this situation, the Judge is more likely to be taken in by the authority of previous decisions on the basis of established legal rules and follow the well trodden path. It is in situations like this where the law remains static. I believe that the theory of analogical reasoning has contributed to the slow development of this area of law and I will be referring to this theory in further detail. This leads me nicely on to the next theory which is path dependency. Path dependency is essentially a theory that emphasises that ‘history matters’, and that a particular outcome or decision is influenced by an outcome or decision on the path leading to it. In a legal context, the decisions of Judges are influenced by previous decisions and outcomes of similar cases, namely precedent. As Martin Golding puts it, ‘Loosely speaking, a judge’s reasoning is what passes through his mind in the course of arriving at a decision’. The theory is a much deeper and more complicated one than I have newly described, and I will attempt to show this throughout the essay.
The path was set with Lord Chief Justice Hale in the eighteenth century when he described the law as being that ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract’. Obviously today this is seen as terrible law but why then was it followed so strictly for so long? Why could no one bring themselves to take a different path, even when society were outraged that such an archaic law stood so strong in a modern society? Is it because the law was set by such an influential and important character or because it was just the easier option to go along with what was previously set? The first case that seemed to affirm Hale’s statement was that of ‘R v Clarence’. Although this was not a case where rape was alleged, this was the first case which included an acceptance of the rule that a married woman gives implied consent to the act of sexual intercourse. But in the context of the situation, is it really surprising that the first Judge to come across this issue was to go against the path set by the Lord Chief Justice? I believe that it is not, in which case the path was already strongly reinforced before it had, in a way, began to run its course. Paul Pierson uses the theory of ‘increasing returns’ in order to better explain the theory of path dependency. Increasing returns essentially means that steps taken along a certain path will induce a following along that same path. The more well trodden that path becomes, the more the benefits of continuing down that same path increase and therefore it is more likely that that particular path will be chosen in the future. The ‘road not chosen’ becomes increasingly unreachable as an alternative. This basically means that the further down the path you travel, the further you must travel back in order to reach your original position and take a different route; therefore the chances of wanting to turn back drastically decrease. I believe that ‘R v Clarence’ had already introduced the theory of increasing returns by being the first to affirm Hale’s doctrine. The path post ‘Clarence’ had now been trodden over twice, which made the benefits of following that path visible to future Judges, and hence Justice Wills in ‘Clarence’ was not the last Judge to choose to follow Hale’s path.
The first influential case to discuss with regards to marital rape came in 1949 as ‘R v Clarke’, where a man was charged with the rape of his wife at a time when the couple were still married but there was a separation order in place. The separation order contained a clause that the wife was no longer bound to cohabit with the husband and she was not cohabiting at the time of the offence. The defence counsel applied to the court to quash the charge of rape on the basis that it was not actually an offence known to the law. This argument reinstates Hale’s doctrine and would represent an easy path to follow for the Judge. The benefits of accepting the argument of the defence and following this path outweighed the benefits of creating a new path and branching off from Hale’s doctrine. The learning effect and increasing returns which I discussed earlier on in the essay would be evident here and the Judge would be benefiting from Lord Chief Justice Hale’s experience. Despite this, there was another factor to consider here which represented a difference from the previous decisions, namely that there was a separation order in place. As I discussed earlier, when differences are evident, Judges are more open to accepting new ideas and embracing change. James Mahoney uses the theory of ‘critical junctures’ in order to explain a position where a person may make a decision out of a number of alternatives. It is emphasised as ‘critical’ as once an option has been chosen, it becomes increasingly difficult to return to the point where the decision was made. Mahoney suggests that the critical juncture period ‘locks in’ future evolution, which in essence means that whatever decision is made will have an effect on shaping future evolution and development. Applying this theory to the facts of the case we see that Justice Byrne had two choices. He may have decided to follow the path of Hale and ignore the separation order, emphasising that the couple were still married at the time and therefore legally, it was impossible for the husband to have committed rape on his wife. Secondly he could have decided to recognise Hale’s statement as a general proposition of law, however also recognise the separation order as a technical device of law and as an exception to Hale’s doctrine. Choosing to follow Hale’s doctrine strictly would have reinforced the already well trodden path and created further increasing returns for future cases. To put it another way, the benefits of following Hale’s doctrine for future Judges would drastically increase and it would be that much more difficult to depart from the chosen path. However Justice Byrne, on reaching a critical juncture, decided to depart slightly from the Hale path and chose the second option, namely to recognise Hale’s doctrine as a general proposition of law yet also recognise the separation order as a technical device and an exception to Hale’s doctrine. The result of this was that the consent to marital intercourse which was implied and given by the wife at the time of the marriage was revoked by the separation order. I believe that the introduction of this exception element was an extremely important and influential aspect in the future development of this issue. Having the confidence to introduce an exception to the Lord Chief Justice’s doctrine and weaken it is no small feat and I believe that this decision did enable followers to take a similar path.
The following few cases such as that of ‘R v Miller’ and ‘R v O’Brien’ reiterated the Hale doctrine while also emphasising that a husband will be liable for assault should he use force or violence during sexual intercourse with his wife, and that the effect of a decree nisi was to remove the implied consent given on marriage, which I believe is built on the similar exception laid down in ‘Clarke’. The case of ‘R v Steele’, where the husband appealed after being found guilty of the rape and assault of his wife further promotes the altered path set down in ‘Clarke’, by introducing a list of technical devices that would render the wife’s consent to be successfully revoked. These include a separation agreement or order, a decree of divorce, an injunction and, as in this case, an undertaking in lieu of an injunction. Once again it is possible to see how the new path set seems to be developing and widening to include a larger scope of exceptions. It is possible to relate this issue to Mark Roe’s theory of an ‘evolutionary path dependence based on a Darwinian notion of gradual and progressive evolution’. Essentially, it is not possible to predict the arrival of a rapid change in advance, however when one change arrives, and it is evident that this change is a positive one, then it is also evident that other changes will follow. Therefore it was only a matter of time before a complete change would arrive, which came in the form of ‘R v R’. At first instance, Mr Justice Owen accepted the implied or presumed Hale doctrine, however stated that a wife may unilaterally withdraw her implied consent to sexual intercourse by a withdrawal from cohabitation and a clear indication that her consent had been terminated. The judge also recognised that Hale, as Chief Justice, would be regarded as strong authority, which emphasises the strength of the path that had been set by Hale many years ago. Despite this, the Judge recognised that ‘it is a very sad commentary on the law’ that a husband was entitled to beat his wife into submission to sexual intercourse. In the Court of Appeal, another critical juncture arose, where the decision of which was more critical than ever in ensuring that the law was to catch up with the social values concerning the institution of marriage. Lord Lane referred to path dependence, and emphasised how the historical background had an influence in setting the scene for the decision the Court of Appeal had to make. The first option the court had was the literal solution, which emphasised the word ‘unlawful’ in the Act of 1976 making it clear that the husband’s immunity was preserved. This represented the ‘similarity’ issue discussed earlier, where the Judge could focus on the similarities and take the easy option of remaining on Hale’s well trodden path. The second option was the compromise solution where Hale’s doctrine would remain, however the exceptions would also remain, and the law would be construed in such a way as to allow further exceptions to arise. Although the law would not remain entirely static as with option one, the evolution would be slow and the change would be small. The third option was the radical solution, where Hale’s solution would be rendered as fiction and inconsistent with the proper relationship between husband and wife in modern society. In what represented a critical, significant and long overdue change in the law on marital rape, the Court of Appeal decided on the radical solution and held that Hale’s common law rule no longer represents the true position of husband and wife in modern day society. As Marianne Giles stated: ‘Given altered social attitudes, and the Court’s belief that “the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim,” the time was right for change’. At the House of Lords, Lord Keith of Kinkel noted that ‘nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances’.
Therefore we can see that it is possible to argue that until recently the development of the common law in this area did not properly reflect changing social values concerning the institution of marriage. However it is important to note that due to path dependency, it is extremely difficult to depart from a well trodden path without good reason, and it is not wholly down to lack of trying that this area of law struggled to keep up with the social values concerning marriage. The judgement of the European Court of Human Rights in the case of ‘SW v United Kingdom’ is a good summing up of the slow evolutionary development of this area of the common law. The Court emphasised that the importance of the common law immunity had been decreasing, which was down to a series of judicial decisions over the years since the Hale doctrine. This had the effect of making the immunity subject to an increasing number of exceptions, and had inevitably caused it to completely disappear.
E. Sherwin, ‘A Defence of Analogical Reasoning in Law’, (1999) 66 Uni. Chicago LR.
I. Mcleod, ‘Legal Method’ 6thed, Palgrave Macmillan law masters.
J. Mahoney, ‘Path dependence in sociological history’ Theory and Society, (2000), 29.
M. Giles, ‘Judicial law-making in the criminal courts: the case of marital rape’ Criminal Law Review (1992).
M. J. Roe, ‘Chaos and Evolution in Law and Economics’, Harvard Law Review (1996), 109(3).
M. Oldham, ‘Financial obligations within the family – aspects of intergenerational maintenance and succession in England and France’, Cambridge Law Journal, (2001).
M. P. Golding, ‘Legal Reasoning’, encore editions, (2001).
P. Pierson ‘Increasing Returns, Path Dependence and the study of Politics’, American Political Science Review, (2000) 94(2).
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