Reflections on R v R
| Date | 01 May 1992 |
| Author | Vanessa Laird |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00919.x |
| Published date | 01 May 1992 |
The
Modern
Law
Review
[Vol.
55
the club of a banker’s draft for
f3,735
and the difficulties which surround the
relationship between a claim
in
conversion and a restitutionary claim.
In
many ways
it
is appropriate that, 25 years after the publication of the first
edition of Goff and Jones’
The
Law
of
Restitution,
which has had an enormous
influence upon the way
in
which we think about the law of restitution, one of its
authors, Lord Goff, should write the leading judgment
in
the House of Lords which
takes the important double step of recognising an independent law of restitution
based upon unjust enrichment and a defence
of
change of position. As this note
has sought to demonstrate, many difficulties lie ahead and there remain many matters
for debate
to
occupy the attention of restitution lawyers, but these debates can now
focus on the shape and scope of the subject rather than its existence.
Reflections
on
R
v
R
Vanessa
Laird”
The House of Lords’ judgment
in
R
v
R,’
which affirms the Court of Appeal’s
decision declaring that
a
husband may be criminally liable for raping his wife,?
proceeds from the belief that the marital exemption for rape ought to be abolished
because the principle
of
implied consent on which
it
is grounded is anachronistic
-
no
longer an accurate representation
of
the position of wives.3 Having stipulated
the desirability of abolition at the outset, the House of Lords faced only the question
of whether legal obstacles blocked that goal. Their Lordships deemed the statutory
specification that rape constitutes ‘unlawful’ intercourse4
to
be the most likely
candidate for ‘insuperable obstacle’ status.s
The central elements of the House of Lords’ decision, which was written by Lord
Keith
of
Kinkel, are thus the anachronism
of
the exemption and the argument that
‘unlawful’ need not be interpreted to mean ‘outside marriage.’ Academic commen-
tators have tended,
both
in
the approach to and
in
the wake of their Lordships’ ruling,
to
leave intact judicial assertions regarding the disjunction between implied consent
and the modern position of wives,6 as well as the judicial assumption that
it
is most
*Faculty of Law, University
of
Sheffield.
I
2
4
I19911 4
All ER
481.
119911 2
All ER
257.
Sexual Offences (Amendment) Act
1976,
s
I(
l)(a)
(‘For the purposes of section
I
of the Sexual Offences
Act
1956
(which relates to rape) a man commit5 rape if
-
(a) he has unlawful sexual intercourse
with a woman who at the time of intercourse does not conscnt
to
it
.
.
.’).
119911 4
All ER
481, 488.
See eg T.R. Bearrows, ‘Abolishing the Marital Exemption for Rape:
A
Statutory Proposal’
[
19831
Univ
of
I//
L
Rev
201
(‘Despite lengthy debate and severe criticism the [marital rape exemption] stands
today as an anachronistic reminder of society’s traditional view of women and marriage generally’):
M.D.A. Freeman, ‘But
If
You Can’t Rape Your Wife. Who[m] Can You Rape‘?: The Marital Exemption
Re-examined’
[
1981)
Fam
L
Q
I,
16
(‘The motion
[sic]
that women imply consent
to
their husbands’
sexual demands may have been meaningful when husbands made all decisions. But society has changed
enormously since those times
. .
.’):
K.
Harrison,
‘No
Means No
-
That’s Final’
[1991]
NU
1489
(‘The first judicial recognition of the offensive and anachronistic effect of the common law immunity
came in
1989’):
Note, ‘The Marital Rape Exemption’
[
19771
New
York
Univ
I,
Rev
306. 313
(‘Even
if the consent rationale was justified when first articulated, it is entirely inconsistent with today’s concept
of egalitarian sexual relationships’).
3
119911 4
All ER
481, 483-84.
5
6
386
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