R v R (Rape: Marital Exemption)
| Jurisdiction | England & Wales |
| Judgment Date | 23 October 1991 |
| Date | 23 October 1991 |
| Court | House of Lords |
House of Lords
Before Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Ackner and Lord Lowry
Crime - rape withim marriage - "unlawful"
A husband could be criminally liable for raping his wife.
The House of Lords so held in upholding the dismissal by the Court of Appeal (Lord Lane, Lord Chief Justice, Sir Stephen Brown, President, Lord Justice Watkins, Lord Justice Neill and Lord Justice Russell) (The Times March 15) of an appeal by a husband against a ruling by Mr Justice Owen at Leicester Crown Court after which the husband entered a plea of guilty to a charge of attempted rape of his wife.
Section 1 of the Sexual Offences (Amendment) Act 1976 provides: "(1) 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…"
Mr Graham Buchanan for the husband; Mr John Milmo, QC and Mr Peter Joyce, QC, for the Crown.
LORD KEITH said that the wife had left the matrimonial home with the son and gone to live with her parents. Both parties had indicated their intention to seek a divorce although no divorce proceedings had been instituted.
A few weeks later the husband 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. He had admitted responsibility for what had happened.
Sir Matthew Hale in his History of the Pleas of the Crown (vol 1 (1736) chapter 58 p629) 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."
For over 150 years after the publication of Hale's work there appeared to have been no reported case in which judicial consideration was given to his proposition. It may be taken that the proposition was generally regarded as an accurate statement of the common law of England.
The common law was however capable of evolving in the light of changing social, economic and cultural developments. Hale's proposition reflected the state of affairs in those respects at the time it was enunciated. Since then the status of women and particularly of married women had...
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