R v R (a Husband)
| Jurisdiction | England & Wales |
| Judgment Date | 14 March 1991 |
| Date | 14 March 1991 |
| Court | Court of Appeal (Criminal Division) |
Court of Appeal
Before Lord Lane, Lord Chief Justice, Sir Stephen Brown, President, Lord Justice Watkins, Lord Justice Neill and Lord Justice Russell
Crime - rape within marriage - common law fiction
A husband could be convicted of raping his wife, for a rapist remained a rapist subject to the criminal law irrespective of his relationship with the victim.
The Court of Appeal, Criminal Division, so held but certified a point of law of general public importance namely: "Is a husband criminally liable for raping his wife?" and gave leave to appeal to the House of Lords.
Reserved judgment was being given dismissing an appeal by a husband from conviction on a plea of guilty to attempted rape of his wife after a ruling by Mr Justice Owen in Leicester Crown Court last July.
The husband was sentenced to three years imprisonment. He had pleaded not guilty to rape and also guilty to assault occasioning actual bodily harm, for which he received a concurrent sentence of 18 months.
Mr Graham Buchanan, assigned by the Registrar of Criminal Appeals, for the husband. Mr John Milmo, QC and Mr Peter Joyce for the Crown.
The LORD CHIEF JUSTICE, giving the judgment of the court, said that after being married for five years and four years after the birth of a son, as a result of matrimonial difficulties the wife left home and, with the son, returned to her parents.
No legal proceedings had taken place but some 22 days later the husband forced his way into the parents' house in their absence and attempted to have sexual intercourse with the wife against her will. He assaulted her by squeezing her neck with both hands.
Some two months before the trial at Leicester a decree nisi of divorce was made absolute.
The appeal against conviction was that the judge's ruling was erroneous but the argument on appeal raised two questions: first, whether there was any basis for the principle, long supposed to be part of the common law, that a wife did by the fact of marriage give any implied consent in advance for the husband to have sexual intercourse with her, and second, whether, assuming that that principle at one time existed, it still represented the law in either a qualified or unqualified form.
Any consideration of that branch of the law had to start with the pronouncement by Sir Matthew Hale, for five years Chief Justice, in History of the Pleas of the Crown (vol 1 (1736) p629):
"But the husband cannot be guilty of a rape...
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