R v R

Factual and Procedural Background

The Appellant was convicted in Leicester Crown Court on 30 July 1990, after pleading guilty to attempted rape and assault occasioning actual bodily harm against his wife. The parties had married in 1984, separated intermittently, and were living apart when, on 12 November 1989, the Appellant forced entry into The Wife’s parents’ home and attacked her. A decree nisi was later made absolute on 3 May 1990, but no divorce proceedings were pending at the time of the offences.

Before Judge Owen, defence counsel argued that a husband could not be guilty of raping his wife. The judge rejected that submission, holding that any implied consent could be withdrawn. Following the ruling, the Appellant entered guilty pleas and received concurrent custodial sentences.

The Appellant appealed to the Court of Appeal (Criminal Division), contending that only a court order or mutual agreement could revoke a wife’s implied consent to intercourse. The Court of Appeal dismissed the appeal on 14 March 1991 but certified a point of law of general public importance. Leave was granted, and the matter came before the House of Lords, which affirmed the Court of Appeal’s order on 23 October 1991.

Legal Issues Presented

1. Whether a husband is criminally liable for raping his wife, notwithstanding the historic common-law “marital exemption.”
2. Whether section 1(1) of the Sexual Offences (Amendment) Act 1976 preserves that exemption by using the word “unlawful.”

Arguments of the Parties

Appellant’s Arguments

• The common law, as articulated by historic authorities such as Author Hale, creates an irrevocable marital consent to intercourse.
• Any revocation of that consent must be by court order or mutual agreement; mere separation is insufficient.
• Section 1(1) of the 1976 Act retains the exemption because “unlawful” intercourse refers only to intercourse outside marriage.

Respondent’s (Director of Public Prosecutions) Arguments

• Social and legal developments have rendered the marital exemption anachronistic and inconsistent with modern conceptions of marriage as a partnership of equals.
• Judicial decisions have already recognised exceptions where consent is withdrawn; logic and fairness demand abolition of the exemption altogether.
• The term “unlawful” in section 1(1) is surplusage; reading it as “outside marriage” would undermine established exceptions and lacks statutory support.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Keith, delivering the leading opinion, held that the common-law marital rape exemption is a “fiction” incompatible with modern social and legal conceptions of marriage as a partnership of equals. The House reasoned as follows:

1. Evolution of Common Law: Common law must adapt to social change. The historic view of a wife as her husband’s chattel is no longer tenable.
2. Scottish Persuasive Authority: The Scottish case S. v. H.M. Advocate convincingly demonstrated that any implied marital consent is revocable; the House adopted that reasoning for England.
3. Analysis of Prior English Cases: Decisional law had already carved out multiple exceptions to the exemption (e.g., separation, court orders). The persistence of the exemption produced illogical results—assault could be prosecuted, yet rape could not.
4. Statutory Construction of the 1976 Act: The word “unlawful” in section 1(1) is best read as surplusage; interpreting it as “outside marriage” would unintentionally abolish the very exceptions Parliament must have assumed. Authority such as McMonagle supports treating the word this way.
5. Judicial Role: Abolishing the exemption is not creation of a new offence but the removal of an outdated common-law fiction. The court therefore need not defer to Parliament.

Holding and Implications

HOLDING: The appeal is dismissed; the conviction is affirmed, and the certified question—“Is a husband criminally liable for raping his wife?”—is answered in the affirmative.

Implications: The House of Lords definitively abolished the marital rape exemption in English law. Husbands are now fully liable for rape of their wives under the standard statutory definition, without qualification or exception. This decision aligns English law with contemporary social norms and Scottish jurisprudence but does not create a new statutory offence; it simply removes an obsolete common-law barrier.