Wednesday 29 May 2019

Notable cases - (6) - R v R

House of Lords - Last Judgment 2009
For centuries, rape has rightly been regarded as one of the most serious criminal offences.   Under common law it was defined as 'the unlawful carnal knowledge of a woman by force and against her will.'  The required state of mind (mens rea) was an intention on the part of the defendant to have intercourse without consent.  The common law position was considered by the House of Lords in the Morgan case in 1975 - reported [1976] AC 182.

In 1736, Sir Matthew Hale commented
in his History of the Pleas of the Crown - “ ... 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.”

It appears that there was no similar statement in the works of any earlier English commentator.  A later legal commentator wrote - “a husband cannot by law be guilty of ravishing his wife, on account of the matrimonial consent which she cannot retract”  - Pleas of the Crown 1803 by
Sir Edward Hyde East

In the first edition (1822) of Archbold, Pleading and Evidence in Criminal Cases, it was stated, after a reference to Hale, “A husband also cannot be guilty of a rape upon his wife.”

These statements were regarded as part of the law until recent times.

: Case of R :

Crown Court:

The basic facts of the case were that, in 1990, R appeared in the Crown Court at Leicester upon an indictment with two counts - (1) Rape and (2) Assault occasioning actual bodily harm.  A submission was made to the judge (Mr Justice Owen) that the charge of rape was one which was not known to the law because R was the husband of the alleged victim. The judge rejected the submission.

After the judge's ruling, on Count 1, R pleaded not guilty to rape but guilty to attempted rape.  On Count 2 he pleaded guilty.  He was sentenced to 3 years imprisonment for the attempted rape and 18 months on Count 2 - sentences to be concurrent. He appealed on the ground that the judge's ruling was wrong in law. 

Court of Appeal:

Lord Lane C.J., Sir Stephen Brown P., Watkins, Neill and Russell L.JJ.  The facts are set out in Lord Lane CJ's judgment -

'R married his wife on 11 August 1984. They had one son who was born in 1985. On 11 November 1987 the parties had separated for a period of about two weeks before becoming reconciled. On 21 October 1989, as a result of further matrimonial difficulties, the wife left the matrimonial home with their son, who was then aged four, and returned to live with her parents. She had by this time already consulted solicitors regarding her matrimonial affairs and indeed had left a letter for the appellant in which she informed him that she intended to petition for divorce. However, no legal proceedings had been taken by her before the incident took place which gave rise to these criminal proceedings. It seems that the appellant had on 23 October spoken to his wife by telephone indicating that it was his intention also to “see about a divorce.”

Shortly before 9 o'clock on the evening of 12 November 1989, that is to say some 22 days after the wife had returned to live with her parents, and while the parents were out, the appellant forced his way into the parents' house and attempted to have sexual intercourse with the wife against her will. In the course of that attempt he assaulted her, in particular by squeezing her neck with both hands. That assault was the subject of count 2. The appellant was interviewed by the police after his arrest and admitted his responsibility for these events as his eventual plea of guilty indicates. The only other matter which need be noted is that on 3 May 1990 a decree nisi of divorce was made absolute.

The question which the judge had to decide was whether in those circumstances, despite her refusal in fact to consent to sexual intercourse, the wife must be deemed by the fact of marriage to have consented. The argument before us has ranged over a wider field and has raised the question whether there is any basis for the principle, long supposed to be part of the common law, that a wife does by the fact of marriage give any implied consent in advance for the husband to have sexual intercourse with her; and secondly, the question whether, assuming that that principle at one time existed, it still represents the law in either a qualified or unqualified form.'

Near the end of his judgment, Lord Lane CJ said -

'We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.'

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.'

Lord Lane added - 'Had our decision been otherwise and had we been of the opinion that Hale's proposition was still effective, we would nevertheless have ruled that where, as in the instant case, a wife withdraws from cohabitation in such a way as to make it clear to the husband that so far as she is concerned the marriage is at an end, the husband's immunity is lost.'

R's appeal was therefore dismissed but the Court of Appeal certified that a point of law of general public importance was involved in the decision and permission to appeal to the House of Lords was granted.

House of Lords:

R v R [92] 1 AC 599 and [1991] UKHL 12 - The House of Lords judgment is in the speech of Lord Keith of Kinkel with whom Lords Lord Brandon of Oakbrook , Lord Griffiths , Lord Ackner and Lord Lowry agreed.

Lord Keith succinctly stated the point of law to be decided - “Is a husband criminally liable for raping his wife?”  His Lordship continued -

' ....  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.'

In Scotland, the High Court of Justiciary in S v Lord Advocate [1989] SLT 469 had decided that the exemption, if it had ever been law in Scotland, was no longer so.

Lord Keith went on to point out 'the absudity of the fiction of implied consent' by saying - 'Logically, it might be thought that if a wife be held to have by marriage given her implied consent to sexual intercourse she is not entitled to refuse her husband's advances, and that if she resists then he is entitled to use reasonable force to overcome that resistance.'

His Lordship then examined cases which had developed exceptions to the general rule.   For example, R v O'Brien (Edward) [1974] 3 All E.R. 663, where Park J. held that a decree nisi effectively terminated a marriage and revoked the wife's implied consent to marital intercourse, so that subsequent intercourse by the husband without her consent constituted rape.  

Hale's proposition had been departed from in a series of decided cases and on grounds of principle there was no good reason why the whole proposition should not be held inapplicable in modern times.  However, it was necessary to consider whether the Sexual Offences (Amendment) Act 1976 s1(1) - (as the Act then stood) - prevented the House taking that course.

The Act s1(1) stated - 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 …

It was argued that the only possible meaning of the word 'unlawful' was 'illicit' - that is to say outside the bounds of matrimony, and that accordingly Parliament's intention must have been to preserve the husband's immunity.

Lord Keith said that the 1976 Act had to be read in the context of the existence of exceptions to the marital exemption contained in the decided cases.  He went on to say - 

'Sexual intercourse in any of the cases covered by the exceptions still takes place within the bond of marriage. So if “unlawful” in the subsection means “outside the bond of marriage” it follows that sexual intercourse in a case which falls within the exceptions is not covered by the definition of rape, notwithstanding that it is not consented to by the wife. That involves that the exceptions have been impliedly abolished. If the intention of Parliament was to abolish the exceptions it would have been expected to do so expressly, and it is in fact inconceivable that Parliament should have had such an intention.'

Lord Keith concluded that the 1976 Act was not an obstacle to the House declaring that in modern times the supposed marital exemption in rape formed no part of the law.

R's appeal was therefore dismissed.  The old marital exemption for husbands, in so far as it remained in existence, was therefore swept away and the House achieved a major step forward in the development of the modern law.

In October 2015 Lord Neuberger - (at the time President of the Supreme Court) - said of R v R -

'In R v R, the House of Lords reversed the common law rule which went back to time
immemorial that a man who forced himself on his wife could not be guilty of rape.  In taking that
course in 1991, the Law Lords ensured that the UK joined a growing band of countries which
criminalised marital rape.  The courts of France and Spain took the same step in the early
1990s, and the Germans did so in 1997, but the Italian courts were ahead of them criminalising
marital rape in 1976.  While it is often difficult to decide whether to sacrifice certainty for
progress, many people may think that the decision in R v R was relatively easy.  In any event, in
this country, with parliamentary supremacy, the courts can change the law secure in the
knowledge that the legislature can reverse or fine-tune the change if it wishes.  The decision also
reminds us how perceptions change over time, and what appeared self-evidently right 300 years
ago can seem to us today to be wholly unacceptable' -  Lord Neuberger - Reflections on the ICLR Top Fifteen Cases: A talk to commemorate the ICLR’s 150th Anniversary - see this previous post.

Modern law:

Rape is now defined by the Sexual Offences Act 2003 s.1Section 75 and section 76 should be noted.

At common law the victim of rape had to be female.  The offence of rape was applied to males by the Criminal Justice and Public Order Act 1994 section 142 (now repealed).  It suffices that the 2003 Act refers to "another person (B)."

In March 2019 The Guardian published - Rape prosecution rate in England and Wales falls to five-year low - where it is noted that just over a third of the 2,310 rape cases referred to the Crown Prosecution Service (CPS) between April and September last year resulted in charges being brought. The rate for the full year in 2013-14 was 62%.

See also BBC News 29 April 2019 - Why are rape prosecutions falling?

The CPS Policy for Prosecution of Rape Cases explains the way that the Crown Prosecution Service (CPS) deals with cases in which an allegation of rape has been made. It gives advice on what the CPS does, how rape cases are prosecuted, and what victims can expect from the CPS. The document is particularly designed for those who support victims of rape, whether professionally or personally, although it may be of interest to victims, witnesses and the general public.

The CPS has also published:

Rape and Sexual Offences - Societal Myths

False allegations of rape and/or domestic abuse

The Sentencing Council has published a Guideline for Sentencing Rape Cases


Rook and Ward is the leading work on Sexual offences, providing coverage of the most up to date legislation including the latest amendments to the Sexual Offences Act 2003 along with practice and procedure. It is an essential tool for all those involved in defending and trying sexual offence cases.

Another textbook is  Pegg and Davies.


Matthew Hale (1609-76)

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