R v R, United Kingdom House of Lords, Judgment, Law, casemine.com

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LORD GRIFFITHS
LORD ACKNER
LORD KEITH OF KINKEL
Appeal dismissed.
[Reported by MRS. GURINDER GOSAL, Barrister]
LORD BRANDON OF OAKBROOK
LORD LANE C J
LORD LOWRY

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R v. R

Smart Summary

Factual and Procedural Background

The case concerns a husband who was convicted of raping his wife. A certificate was granted under section 33(2) of the Criminal Appeal Act 1968 identifying a point of law of general public importance: whether a husband can be criminally liable for raping his spouse. The Appellant challenged both the trial ruling and the judgment of the Court of Appeal (Criminal Division). The House of Lords granted leave, heard full argument, and ultimately dismissed the appeal.

Legal Issues Presented

Is a husband criminally liable for raping his wife?

Arguments of the Parties

Appellant's Arguments

The longstanding common-law rule, originating in Hale’s History of the Pleas of the Crown (1736), confers immunity upon a husband from prosecution for raping his wife, save in narrowly defined exceptions.
This principle was repeatedly affirmed in nineteenth- and twentieth-century authorities, including Reg. v Clarence (1888) and later cases such as Reg. v Miller [1954] and Reg. v Steele (1976).
The Sexual Offences (Amendment) Act 1976, by using the word “unlawful” in section 1(1)(a), preserved the marital exemption; “unlawful” should be read as meaning “illicit,” i.e. intercourse outside marriage (relying on Reg. v Chapman [1959]).
Subsequent decisions that questioned the exemption—especially Reg. v C. (1991)—are said to be unsound because rape became a statutory, not common-law, offence in 1976.

Respondent's Arguments

In criminal statutes the word “unlawful” means “without lawful authority or excuse”; it is not confined to intercourse outside marriage.
The historical foundation for the so-called marital immunity is weak: earlier commentators such as Glanvill, Bracton, Dalton and Coke do not mention it, and Hale cited no authority.
Social and legal developments (e.g. modern matrimonial legislation) undermine the rationale that a wife gives irrevocable consent to intercourse.
Courts have progressively limited the exemption; it is open to the House of Lords to declare that the supposed rule no longer forms part of English law, analogously to the steps taken in Shaw v DPP [1962] and Reg. v Button [1966] to remove obsolete defences or fictions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Reg. v Clarence (1888) 22 Q.B.D. 23	Early judicial acceptance of marital rape immunity	Referenced to show historical endorsement of the exemption
Rex v Clarke [1949] 2 All E.R. 448	Wife’s implied consent may be revoked by court order	Cited to illustrate emergence of exceptions to the general rule
Reg. v Miller [1954] 2 Q.B. 282	Successful reliance on marital exemption	Used as one of only two reported cases where the defence prevailed
Reg. v Reid [1973] Q.B. 299	Continued acceptance of the general rule with exceptions	Listed among authorities maintaining the exemption
Reg. v O’Brien [1974] 3 All E.R. 663	Further recognition of exceptions	Supportive of Appellant’s historical argument
Reg. v Steele (1976) 65 Cr App R. 22	Limits on revocation of implied consent	Invoked to argue the exemption survived until at least 1976
Reg. v Roberts [1986] Crim L.R. 188	Assumption that immunity still existed	Cited as part of continuing judicial practice
Reg. v Kowalski (1987) 86 Cr App R. 339	Same assumption as Roberts	Used to demonstrate prevailing view pre-1990
Reg. v H. (unreported, 5 Oct 1990)	Continuation of traditional approach	Referenced in historical survey
Reg. v C. (Rape: Marital Exemption) [1991] 1 All E.R. 755	Challenge to the exemption	Appellant argued it was wrongly decided
Reg. v J. (Rape: Marital Exemption) [1991] 1 All E.R. 759	Construction of “unlawful” as “outside marriage”	Relied on by Appellant to support survival of exemption
Reg. v Chapman [1959] 1 Q.B. 100	Meaning of “unlawful” as “illicit”	Key plank of Appellant’s statutory argument
McMonagle v Westminster City Council [1990] 2 A.C. 716	Caution against treating statutory words as surplusage	Used to support Appellant’s textual analysis
Reg. v Morgan [1976] A.C. 182	Pre-1976 common-law definition of rape	Background to 1976 statutory reforms
Reg. v Jackson [1891] 1 Q.B. 671	Wife’s legal autonomy developments	Respondent cited to undermine Hale’s rationale
S. v H.M. Advocate 1989 S.L.T. 469	Scottish rejection of marital immunity	Used to show comparative approach
Shaw v DPP [1962] A.C. 220	Judicial power to develop common law	Respondent argued House could remove outdated defences
Reg. v Button [1966] A.C. 591	Judicial abolition of an obsolete defence	Cited to justify removing marital exemption
Reg. v Taylor (Vincent) [1973] A.C. 964	Flexibility in criminal jurisprudence	Reinforced Respondent’s position

Court's Reasoning and Analysis

The opinion contains only a brief outcome statement. It records that, after hearing full argument and considering the certified question of public importance, the House of Lords dismissed the appeal. No detailed exposition of the Law Lords’ reasoning is provided in the text beyond noting their acceptance that a husband may be criminally liable for raping his wife.

Holding and Implications

Appeal dismissed.

By dismissing the appeal the House of Lords affirmed that the marital rape exemption is not a defence in English criminal law; a husband can therefore be prosecuted for raping his wife. The immediate consequence is the upholding of the Appellant’s conviction. The decision aligns the law of England and Wales with that of Scotland and removes an historically recognised but increasingly eroded defence.