R v R [1991] 4 All ER 481

R v R (marital rape exemption)

R v R (rape: marital exemption) [1991] 4 All ER 481

COURT

The House of Lords

JUDGES

Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Ackner and Lord Lowry.

DATE

1 July, 23 October 1991

Summary

The landmark case of R v R (1991) removed the legal exemption for rape in marriage in England and Wales. The case involved a husband who was accused of raping his wife, to which he argued that it was not possible for a husband to rape his wife as their sexual relations were consensual by nature. However, the court held that the marital exemption to rape was an outdated common law doctrine that could no longer be tolerated in a modern society that upholds basic human rights. As a result, the decision in R v R led to the criminalisation of rape within marriage, and marked a significant step forward in recognizing sexual violence against women as a crime in its own right.

FACTS

The appellant wed his wife in August 1984, and the couple's first child was born the following year, in 1985. The couple lived apart for around two weeks beginning on November 11, 1987, however they returned to living together at the conclusion of that time period. On October 21, 1989, the wife and the child moved in with the mother and father of the woman who had previously been her husband. On November 12, 1989, about 9 o'clock in the evening, the appellant broke into the home of his wife's parents, who were not there at the time, and tried to have a sexual encounter with his wife without her consent. Her parents were not there at the time. In the process of doing so, he abused her by putting both of his hands around her neck and pressing it.

The appellant filed an appeal with the permission of the Criminal Division of the Court of Appeal against the decision of that court dated 14 March 1991 that dismissed his appeal against his conviction before Owen J in the Crown Court at Leicester on 30 July 1990 ([1991] 1 All ER 747) on charges of attempted rape (count 1) and assault causing actual bodily harm (count 2) on his then-wife to which he pleaded guilty following the trial judge's ruling that he could be convicted of rape On count 1, the appellant was given a sentence of three years in prison, and on count 2, he received a concurrent term of eighteen months in jail.

LEGAL ARGUMENT

The main submissions made were that:

A husband could not in law be guilty as a principal of the offence of raping his own wife;
R v Clarke states that rape between married persons was impossible as stated by Wills J; and
Raping your own wife is not unlawful.

First instance

The plea made on behalf of the defendant by the defence barrister that he could not be found guilty of rape owing to the marital rape exception was shot down by the trial judge Owen J. On count 1, the appellant was given a sentence of three years in jail, and on count 2, he received a term of 18 months. It was possible for permission to be withdrawn either by an agreement between the parties or through the wife unilaterally withdrawing herself from cohabitation and making it plain that consent to sexual intercourse had been discontinued. Either way, consent may be revoked.

Court Of Appeal

On appeal to the Criminal Division by Lord Justice Watkins, Lord Justice Neill and Lord Justice Russell, it was noted that the trial judge had erred, Owen J:

“made a wrong decision in law in ruling that a man may rape his wife when the consent to intercourse which his wife gives in entering the contract of marriage has been revoked neither by order of a Court nor by agreement between the parties.”

According to section 33(2) of the Criminal Appeal Act of 1968, the Court of Appeal held that the case included a matter of law that was of wide public significance. The question that was being decided was whether or not a husband might be held criminally accountable for raping his wife. On March 14, 1990, that court (Lord Lane CJ, Sir Stephen Brown P, Watkins, Neill and Russell LJJ) ([1991] 2 All ER 257, [1991] 2 WLR 1065) delivered a reserved judgement dismissing the appeal but confirming the question of general public importance set out above and granting leave to appeal to your Lordships' House, which the appellant now does.

House of Lords

The Common Law issue

Because of the poor position of women in society during that time period—women were not even allowed to divorce their husbands—a woman does not have the authority to forbid her husband from having sexual relations with another person.

In his book History of the Pleas of the Crown, Sir Matthew Hale wrote: “But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up this kind unto her husband which she cannot retract.” In other words, the husband cannot be found guilty of raping his lawful wife since the wife has already handed herself over to her husband in this way and cannot take it back.

However, because this description was penned in the 18th century and since that time there has been a significant shift in how women are expected to behave in society, there are those who question whether or not this term is still relevant today.

Lord Keith of Kinkel

It was maintained by Lord Keith of Kinkel that common law is capable of developing in response to changing social, economic, and cultural norms and normative assumptions. At the time when Hale's argument was articulated, these were the facts of the situation, and it was accurate to represent those facts. Since that time, the position of women, and in particular the status of married women, has significantly shifted in a number of ways that are very well known and about which it is superfluous to go into detail here. These shifts have rendered the previous status quo completely obsolete. Aside from concerns over property and the accessibility of marital remedies, one of the most significant shifts is that marriage in today's times is considered as a partnership of equals, and it is no longer one in which the woman is required to be the obedient chattel of the husband. This is one of the most significant developments. The premise of Hale's argument is that after a couple ties the knot, the woman essentially grants her unqualified agreement to her husband engaging in sexual activity with her at any time, under any circumstances, and regardless of the condition of her health or how she happens to be feeling at the moment. In this day and age, it is impossible for any sensible individual not to consider such notion to be completely abhorrent. Everyone on the bench shared Lord Keith of Kinkel's viewpoint on the matter. He remarked that

“I am therefore of the opinion that s 1(1) of the 1976 Act presents no obstacle to this House declaring that in modern times the supposed marital exception in rape forms no part of the law of England.”

OTHER SUPPORT

Lord Emslie

The Lord Justice General, also known as Lord Emslie, was not a supporter of Hume's viewpoint. He stated that although Hume's perspective was valid in the 18th and early 19th centuries, it has become obsolete in modern times. This passage was written by Hume during a period when women were expected to follow their husbands in all matters. They had no rights to property, a wife's liberties were almost nonexistent, and she had no right to intervene in her husband's authority over the life and upbringing of any children that resulted from the marriage. In particular, she had no right to leave the house without her husband's permission. The legal position of women, as well as the legal position of a woman who is married, has undergone significant changes throughout the course of the 20th century in our legal system. To all intents and purposes, a husband and wife are now considered to be equal partners in marriage, and both the husband and the wife are responsible for the education and upbringing of their children. A woman is not obligated in any way to follow her husband in everything, nor is she required to submit to her husband's excessive sexual demands in any way. For the purposes of getting a divorce, she may use such requests as proof that her husband is acting in an unreasonable manner. As a result, it is impossible to legitimately assert that, upon entering into a marriage, a woman irreversibly commits herself to sexual intercourse under any and all situations.

Lord Lane CJ

At the conclusion of the case, Lord Lane CJ shared a similar perspective and stated:

“The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”

If a woman is seen to have given her implied permission to sexual intercourse by virtue of the fact that she is married to her husband, then logically speaking, she does not have the right to reject her husband's advances, and if she refuses, then he has the right to use reasonable force to overcome her resistance. This is because marriage is considered to have created an implicit contract between the parties. This demonstrates the absurdity of the situation in which a husband may render himself accountable to the criminal law, but not for the crime of rape, if he forces his wife to engage in sexual activity against her will. In addition to the possibility of being charged with injuring or inflicting real bodily injury, he also runs the risk of being tried for common assault. Because of this, it is undeniably against the law to engage in sexual activity with a woman in any capacity if she has not given her permission to do so. The House of Lords has a responsibility to repeal outmoded legislation, although the primary obligation falls with the legislative process.

Ratio Decidendi

If you engage in unlawful sexual activity with your own wife without her agreement, you may be charged with rape.

Decision of Court

Appeal Dismissed.

Commentary

Secondly, it is argued precedents contain a level of “fixity”. This can result in the situation that where an outdated precedent can become fixed because judges will be reluctant to overturn the precedent where legislation exists or as a matter of policy.[1] This can lead to many injustices occurring before they are challenged. The classic example of this and also where judges are seen to be making law is seen in the judgment of R v R.[2] This case demonstrated how there was a two hundred and fifty year delay in the law recognising marital rape. The law previously stated a man was not able to rape his wife which was completely outdated.[3] The Sexual Offences Act 1976 simply said that it is “a felony to rape a woman”. Rape was defined as “unlawful sexual intercourse” in that Act. In this case the court was bound by a previous decision and in order to depart had had to reinterpret the word ‘unlawful’, to be, in the context of wedlock rape, ‘superfluous’. This was a practical use of statutory interpretation which provided a clear solution to the problem. Only after this precedent was set was rape in marriage possible.

Jurisprudence of the decision

John Austin a positivist thinker felt the common law usually got it right, but rationalisation was needed. He believed tradition was not law unless a court declared it so. Austin, who opposed Bentham's opposition to judicial lawmaking, saw it as "highly beneficial and even absolutely necessary".[4] Simply enough, Austin included judicial lawmaking in his command theory: by referring to that kind of law-making as the "tacit commands" of the sovereign, with the sovereign supporting the "orders" by its acquiescence, together with the sporadic legal/judicial acknowledgment of customs by judges.

Footnotes

[1] Griffith, J, The politics of the Judiciary, 5th Edition, (Harper Collins Publishers, 1997)

[2] [1991] 3 WLR 767

[3] Hale, Sir M, The history of the common law of England, (Chicago, University of Chicago Press, 1979)

[4] Austin, John, 1832, The Province of Jurisprudence Determined, W. Rumble (ed.), Cambridge: Cambridge University Press, 1995, Lecture V, p. 163

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