R v R [1991] UKHL 12

A husband was convicted of attempted rape upon his wife after forcing entry into her parents' home where she had been living following their separation. The House of Lords abolished the common law marital exemption from rape, holding that marriage no longer implies irrevocable consent to sexual intercourse.

Facts

The appellant married his wife in August 1984 and they had one son. On 21 October 1989, the wife left the matrimonial home with their son to live with her parents, having left a letter for the appellant indicating her intention to petition for divorce. On 23 October 1989, the appellant spoke to his wife by telephone indicating he also intended to seek a divorce. No divorce proceedings had been instituted before the incident. On 12 November 1989, the appellant forced his way into his wife’s parents’ house and attempted to have sexual intercourse with her against her will, squeezing her neck with both hands during the assault.

Issues

Primary Issue

Whether a husband could be criminally liable for raping his wife, given the long-standing common law proposition attributed to Sir Matthew Hale that a husband cannot be guilty of rape upon his lawful wife.

Secondary Issue

Whether section 1(1) of the Sexual Offences (Amendment) Act 1976, which used the word ‘unlawful’ in defining rape, preserved the marital exemption from rape.

Judgment

The House of Lords unanimously dismissed the appeal and held that a husband is criminally liable for raping his wife. Lord Keith of Kinkel delivered the leading judgment, with which all other Law Lords agreed.

Lord Keith examined the historical basis for the marital exemption, tracing it to Hale’s proposition from 1736:

“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.”

His Lordship noted that the status of women and married women had changed dramatically since Hale’s time:

“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.”

Regarding the word ‘unlawful’ in the 1976 Act, Lord Keith held that it should be treated as surplusage and did not preserve the marital exemption. He observed that it was inconceivable Parliament intended to abolish the exceptions to the marital exemption that had developed in case law.

Approving the Court of Appeal’s approach, Lord Keith stated:

“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.”

Implications

This landmark decision abolished the marital exemption from rape in English law, establishing that marriage does not imply irrevocable consent to sexual intercourse. The decision aligned English law with Scottish law following S v H.M. Advocate (1989) and recognised the fundamental change in the status of women in society. The ruling demonstrated the capacity of the common law to evolve in response to changing social conditions and moral standards, removing what was characterised as an anachronistic fiction that had no place in modern law.

Verdict: Appeal dismissed. The House of Lords unanimously held that a husband is criminally liable for raping his wife, abolishing the common law marital exemption from rape.

Source: R v R [1991] UKHL 12