R v R [1991]

JurisdictionEngland & Wales
JudgeLord Brandon of Oakbrook,Lord Keith of Kinkel,Lord Griffiths,Lord Ackner
Judgment Date23 October 1991
Judgment citation (vLex)[1991] UKHL J1023-1
Date23 October 1991
CourtHouse of Lords
Regina
and
R.
(Appellant)
(on Appeal from the Court of Appeal (Criminal Division))

[1991] UKHL J1023-1

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Griffiths

Lord Ackner

Lord Lowry

House of Lords

Lord Keith of Kinkel

My Lords,

1

In this appeal to the House with leave of the Court of Appeal (Criminal Division) that court has certified the following point of law of general public importance as being involved in its decision, namely:

"Is a husband criminally liable for raping his wife?"

2

The appeal arises out of the appellant's conviction at Leicester Crown Court on 30 July 1990, upon his pleas of guilty, of attempted rape and of assault occasioning actual bodily harm. The alleged victim in respect of each offence was the appellant's wife. The circumstances of the case were these. The appellant married his wife in August 1984 and they had one son born in 1985. On 11 November 1987 the couple separated for about two weeks but resumed cohabitation at the end of that period. On 21 October 1989 the wife left the matrimonial home with the son and went to live with her parents. She had previously consulted solicitors about matrimonial problems, and she left at the matrimonial home a letter for the appellant informing him that she intended to petition for divorce. On 23 October 1989 the appellant spoke to his wife on the telephone indicating that it was his intention also to see about a divorce. No divorce proceedings had, however, been instituted before the events which gave rise to the charges against the appellant. About 9 p.m. on 12 November 1989 the appellant forced his way into the house of his wife's parents, who were out at the time, and attempted to have sexual intercourse with her against her will. In the course of doing so he assaulted her by squeezing her neck with both hands. The appellant was arrested and interviewed by police officers. He admitted responsibility for what had happened. On 3 May 1990 a decree nisi of divorce was made absolute.

3

The appellant was charged on an indictment containing two counts, the first being rape and the second being assault occasioning actual bodily harm. When he appeared before Owen J. at Leicester Crown Court on 30 July 1990 it was submitted to the judge on his behalf that a husband could not in law be guilty as a principal of the offence of raping his own wife. Owen J. rejected that proposition as being capable of exonerating the appellant in the circumstances of the case. His ground for doing so was that, assuming an implicit general consent to sexual intercourse by a wife on marriage to her husband, that consent was capable of being withdrawn by agreement of the parties or by the wife unilaterally removing herself from cohabitation and clearly indicating that consent to sexual intercourse had been terminated. On the facts appearing from the depositions either the first or the second of these sets of circumstances prevailed. Following the judge's ruling the appellant pleaded guilty to attempted rape and to the assault charged. He was sentenced to three years' imprisonment on the former count and to eighteen months imprisonment on the latter.

4

The appellant appealed to the Court of Appeal (Criminal Division) on the ground that 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."

5

On 14 March 1990 that Court (Lord Lane C.J., Sir Stephen Brown P., Watkins, Neill and Russell L.JJ.) delivered a reserved judgment dismissing the appeal but certifying the question of general public importance set out above and granting leave to appeal to your Lordships' House, which the appellant now does.

6

Sir Matthew Hale, in his History of the Pleas of the Crown (1736) vol. 1, ch. 58, p. 629, wrote:

"But 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 herself up in this kind unto her husband which she cannot retract."

7

There is no similar statement in the works of any earlier English commentator. In 1803 East, in his Treatise of the Pleas of the Crown, Vol. 1 ch. X, p. 446, wrote:

"… a husband cannot by law be guilty of ravishing his wife, on account of the matrimonial consent which she cannot retract."

8

In the first (1822) edition of Archbold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases, at p. 259 it was stated, after a reference to Hale, "A husband also cannot be guilty of a rape upon his wife."

9

For over 150 years after the publication of Hale's work there appears to have been no reported case in which judicial consideration was given to his proposition. The first such case was Reg. v. Clarence (1888) 22 Q.B.D. 23, to which I shall refer later. It may be taken that the proposition was generally regarded as an accurate statement of the common law of England. The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale's proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable.

10

In S. v. H.M. Advocate 1989 S.L.T. 469 the High Court of Justiciary in Scotland recently considered the supposed marital exemption in rape in that country. In two earlier cases, H.M. Advocate v. Duffy 1983 S.L.T. 7 and H.M. Advocate v. Paxton 1985 S.L.T. 96 it had been held by single judges that the exemption did not apply where the parties to the marriage were not cohabiting. The High Court held that the exemption, if it had ever been part of the law of Scotland, was no longer so. The principal authority for the exemption was to be found in Baron Hume's Criminal Law of Scotland, first published in 1797. The same statement appeared in each edition up to the fourth, by Bell, in 1844. At p. 306 of vol. 1 of that edition, dealing with art and part guilt of abduction and rape, it was said:

"This is true without exception even of the husband of the woman; who although he cannot himself commit a rape on his own wife, who has surrendered her person to him in that sort, may however be accessory to that crime … committed on her by another."

11

It seems likely that this pronouncement consciously followed Hale.

12

The Lord Justice-General, Lord Emslie, who delivered the judgment of the court, expressed doubt whether Hume's view accurately represented the law of Scotland even at the time when it was expressed and continued, at p. 473:

"We say no more on this matter which was not the subject of debate before us, because we are satisfied that the Solicitor-General was well founded in his contention that whether or not the reason for the husband's immunity given by Hume was a good one in the 18th and early 19th senturies, it has since disappeared altogether. Whatever Hume meant to encompass in the concept of a wife's 'surrender of her person' to her husband 'in that sort' the concept is to be understood against the background of the status of women and the position of a married woman at the time when he wrote. Then, no doubt, a married woman could be said to have subjected herself to her husband's dominion in all things. She was required to obey him in all things. Leaving out of account the absence of rights of property, a wife's freedoms were virtually non-existent, and she had in particular no right whatever to interfere in her husband's control over the lives and upbringing of any children of the marriage.

By the second half of the 20th century, however, the status of women, and the status of a married woman, in our law have changed quite dramatically. A husband and wife are now for all practical purposes equal partners in marriage and both husband and wife are tutors and curators of their children. A wife is not obliged to obey her husband in all things nor to suffer excessive sexual demands on the part of her husband. She may rely on such demands as evidence of unreasonable behaviour for the purposes of divorce. A live system of law will always have regard to changing circumstances to test the justification for any exception to the application of a general rule. Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances. It cannot be affirmed nowadays, whatever the position may have been in earlier centuries, that it is an incident of modern marriage that a wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. There is no doubt that a wife does not consent to assault upon her person and there is no plausible justification for saying today that she nevertheless is to be taken to consent to intercourse by assault. The modern cases of H.M. Advocate v. Duffy and H.M. Advocate v. Paxton show that any supposed implied consent to intercourse is not irrevocable, that separation may demonstrate that such consent has been withdrawn, and that in these circumstances a relevant charge of rape may lie...

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