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Changes in law: Rape inside marriage
The law governing sexual offences is covered by the sexual offences Act 2003 which you will study in level 2 Criminal Law. However at one time there was a rule that a husband cannot be criminally liable for raping his wife. This rule was affected radically by the House of Lords decision in R v R [ 1991 ] 4 All ER 481. Read the decision and answer the following question. (1)How many Lords heard the appeal ? (2)In your words outline the point of law of general public importance involved in the appeal. Explain why such a point of law is alluded to by the Court. (3)Summarize the material facts. (4)Clearly describe the law on marital rape prior to the decision in R v R. (5)Clearly describe the law on marital rape following the House of Lords decision in R v R. (6)From your knowledge of the legal system, identify and explain how this case illustrates the working of key themes e.g. development of precedent, statutory interpretation, rule of law, interaction between common law and legislation, influence of societal factors. (7)Identify the ratio decidendi.
In the case of R v R the appeal was heard by five Lords. These were Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Ackner and Lord Lowry. The point of law that this case was addressing was whether a wife was deemed to have consented irrevocably to sexual intercourse with her husband. The Lordships justified their decision on the basis that the case was not concerned with creating a new offence but with their duty to remove a common law fiction which was unacceptable.
The facts of this case are as follows.
The appellant married his wife on 11 August 1984. They had one son who was born in 1985. On 11 November 1987 the parties had separated for a period of about two weeks before becoming reconciled. On 21 October 1989, as a result of further matrimonial difficulties, the wife left the matrimonial home with their son, who was then aged four, and returned to live with her parents. She had by this time already consulted solicitors regarding her matrimonial affairs and indeed had left a letter for the appellant in which she informed him that she intended to petition for divorce. However, no legal proceedings had been taken by her before the incident took place which gave rise to these criminal proceedings. It seems that the appellant had on 23 October spoken to his wife by telephone indicating that it was his intention also to "see about a divorce."
Shortly before 9 o'clock on the evening of 12 November 1989, that is to say some 22 days after the wife had returned to live with her parents, and while the parents were out, the appellant forced his way into the parents' house and attempted to have sexual intercourse with the wife against her will. In the course of that attempt he assaulted her, in particular by squeezing her neck with both hands. That assault was the subject of count 2. The appellant was interviewed by the police after his arrest and admitted his responsibility for these events as his eventual plea of guilty indicates. The only other matter which need be noted is that on 3 May 1990 a decree nisi of divorce was made absolute.
The question which the judge had to decide was whether in those circumstances, despite her refusal in fact to consent to sexual intercourse, the wife must be deemed by the fact of marriage to have consented. The argument before us has ranged over a wider field and has raised the question whether there is any basis for the principle, long supposed to be part of the common law, that a wife does by the fact of marriage give any implied consent in advance for the husband to have sexual intercourse with her; and secondly, the question whether, assuming that that principle at one time existed, it still represents the law in either a qualified or unqualified form. "
The husband was sentenced to three years' imprisonment for the attempted rape and 18 months' imprisonment concurrent for the assault.
Prior to the decision in R v R husbands were exempt from prosecution for marital rape. Most people believed it was impossible for a husband to rape his wife. Three theories of why this should be the case were expounded. The theories include implied consent theory, the unities of person theory and the property theory. The implied consent theory is that as expressed by Sir Matthew Hale below. It centres on the notion that the wife implies consent by entering into a marriage contract with her partner. The importance behind allowing the courts to charge for an offence of marital rape assists in many domestic violence cases, and attempts to get rid of the notion that by marrying someone you are in essence consenting to have sex with them. In the seventeenth century Sir Matthew Hale made the comment “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given up herself in this kind unto her husband, which she cannot retract." Hale appeared to be of the opinion that matrimonial consent was irrevocable. Over time variations on this irrevocability have been adapted which allowed a wife to revoke her implied consent in times when the terms of the marriage were suspended.
The unities theory does not recognise the wife as a separate being capable of being raped. The theory stems from the notion that when two people marry they become one. Under this theory the woman becomes part of the man and the position is effectively non-existent within the marriage. Following this notion that the woman is part of the man it would be impossible for him to rape himself.
The unities theory is similar to the property theory. Under the property theory the wife becomes the property of the husband. The aim of the property theory was to inspire and perpetuate harmony into the relationship. As the wife is the property of the husband sexual intercourse can never be rape as the husband is merely using his rightful property.
It was easy to accept the above theories as proving marital rape posed many difficulties for a court. One of the biggest difficulties was in adducing evidence. As a married couple are likely to frequently indulge in intercourse it can be extremely difficult to prove that one occasion was not consensual. Other difficulties could arise where the couple are in the process of seeking a divorce and the wife blackmails the husband into providing more financial support by threatening to report him for rape. It was also viewed that allowing allegations of rape would cause unrest and prevent reconciliation. The final point that caused difficulties is that allowing allegations of rape within marriage allowed state intervention into the privacy of marriage.
In 1889 Justice Field brought the deficiency in the legal system to light and stated that he believed there were times when a married woman could refuse intercourse and the husband be held liable for rape. In R v Clarke the wife obtained a judicial separation order stating she was no longer bound to live with her husband. Two weeks after the order was issued the wife was allegedly raped by her husband. Justice Bryne whilst recognising that a man cannot rape his wife held that when the wife had been given a separation order the consent to intercourse was effectively revoked. Before the appeal was heard in R v R the Law Commission completed a paper on marital rape and made the following observations. A husband lost his immunity where an order of the court has been made which provides that a wife should no longer be bound to cohabit with her husband;where there has been a decree of judicial separation or a decree nisi of divorce or where a court has issued an injunction restraining the husband from molesting the wife or the husband has given an undertaking to the court that he will not molest her.
Since R v R the led to the revision of the Sexual Offences Act 1956 and the abolition of the marital rape exemption being added to the Act in 1994. This case set the judicial precedent for judicial encroachment into the private sphere of marriage. Lord Keith stated in this case that Hale’s proposition on the marriage contract reflected the state of affairs in these respects at the time it was enunciated. Since the status of women… has changed out of all recognition… marriage is in modern times regarded as a partnership of equals. In the subsequent case of R v C the judge came to the conclusion that Hale's proposition was no longer the law. He stated in this case that in my judgment, the position in law today is, as already declared in Scotland, that there is no marital exemption to the law of rape. That is the ruling I give.
By 1994 the Criminal Justice and Public Order Act had come to recognise the illegality of rape inside marriage and removed the word unlawful from the definition of rape. One controversy the changes in attitude to marital rape created was that it had a retrospective act to it by making something unlawful that had previously been lawful. Justice Owen circumvented this argument when he stated I am asked to accept that there is an assumption or an implied consent by the wife to have sexual intercourse with her husband; with that I do not find it difficult to agree. However, I find it hard to believe… that it was ever the common law that a husband was in fact entitled to beat his wife into submission to sexual intercourse…if it was it is a very sad commentary on the law and a very sad commentary on the judges in whose breasts the law is said to reside. In this case he ruled that the offence could rightly be classed as attempted rape.
The development of precedent is illustrated in this case by abolishing a rule that was 250 years old and replacing it with a new version that reflects the changes in society and the attitudes of men towards women in their relationships.
Prior to this case, statute did little to assist a married woman seeking to bring an action against her husband for rape, however the alteration to the legislation following this case has led to the removal of the word unlawful from the offence which now makes it easier to bring such actions. In this case the court were able to interpret the wording of the Sexual Offences (Amendment) Act 1976, section 1(1) along with Section 1(1) of the Sexual Offences Act 1956 to make a presumption that the defendant was guilty of rape. Section 1(1) of the 1976 Act states For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if - (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it . . And section 1(1) of the 1956 Act states It is felony for a man to rape a woman. Using these in conjunction with each other the judges were able to circumvent the position were the couple are married.
The courts were also swayed by societal factors as evidenced by the comments of Lord Keith in the paragraphs above and below.
The ratio decidendi behind the ruling in R v R was described by Lord Keith as an example of the common law evolving in the light of changing social, economic and cultural developments. He felt that the old system was anachronistic and offensive and that it was the duty of judges to remove the common law fiction so as to give rights to married women not to be subjected to such behaviour because they are joined to their partners by a contract of marriage.
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Elliott, C & Quinn, F, English Legal System, 7th Ed, 2006, Longman, Pearson Education
MacLeod, I, Legal Method, 2005, Palgrave MacMillan, London
Slapper, G & Kelly, D The English Legal System, 4th Ed, 1999, Cavendish Publishing Ltd
Table of Cases
R v C  EWCA Crim 292,  3 All ER 1,  1 FCR 759
R v. Clarke  2 All E.R. 448
R. v J (Rape: Marital Exemption)  1 All E.R. 759 Independent, January 3, 1991 Guardian, January 18, 1991
R. v. Clarke  33 Criminal Appeal Reports 216
R. v. O'Brien  3 All England Law Reports 663
R. v. Steele  65 Criminal Appeal Reports 22
S v HM Advocate 1989 S.L.T. 469 1989 S.C.C.R. 248
Table of Statutes
Criminal Justice and Public Order Act 1994
Sexual Offences (Amendment) Act 1976
Sexual Offences Act 1956
  4 All ER 481
  4 All ER 481
 S v HM Advocate 1989 S.L.T. 469 1989 S.C.C.R. 248; R. v J (Rape: Marital Exemption)  1 All E.R. 759 Independent, January 3, 1991 Guardian, January 18, 1991
  2 All E.R. 448
  4 All ER 481
 R. v. Clarke  33 Criminal Appeal Reports 216
 R. v. O'Brien  3 All England Law Reports 663
 R. v. Steele  65 Criminal Appeal Reports 22
  4 All ER 481
  EWCA Crim 292,  3 All ER 1,  1 FCR 759
  4 All ER 481
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