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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 The judge rejected that submission, holding that any implied consent could be withdrawn.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
- Whether a husband is criminally liable for raping his wife, notwithstanding the historic common-law “marital exemption.”
- 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 , 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- Judicial decisions have already recognised exceptions where consent is withdrawn; logic and fairness demand abolition of the exemption altogether.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
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Reg. v. Clarence (1888) 22 Q.B.D. 23 | Historic acceptance of marital rape exemption, though some judges doubted it. | Illustrated the antiquity and fragility of the exemption; not followed. |
| S. v. H.M. Advocate 1989 S.L.T. 469 | Scottish authority abolishing the marital exemption. | Relied on as persuasive reasoning applicable in England. |
| H.M. Advocate v. Duffy 1983 S.L.T. 7 | Exception where spouses were not cohabiting. | Shown as part of incremental erosion of exemption. |
| H.M. Advocate v. Paxton 1985 S.L.T. 96 | Same principle as Duffy. | Cited to demonstrate revocability of consent. |
| Rex v. Clarke [1949] 2 All E.R. 448 | Consent revoked by a court order ending cohabitation. | Accepted as an existing exception. |
| Reg. v. Miller [1954] 2 Q.B. 282 | Upheld exemption but allowed assault charges for violence. | Criticised for producing illogical outcomes. |
| Reg. v. Jackson [1891] 1 Q.B. 671 | No right to confine a wife to enforce restitution of conjugal rights. | Used to support liability for assault despite marriage. |
| Reg. v. O’Brien [1974] 3 All E.R. 663 | Decree nisi terminates implied consent. | Cited as further erosion of the exemption. |
| Reg. v. Steele (1976) 65 Cr. App. R. 22 | Undertaking not to molest suffices to withdraw consent. | Treated as established authority. |
| Reg. v. Roberts [1986] Crim. L.R. 188 | Formal separation agreement revokes implied consent. | Another recognised exception. |
| Reg. v. Sharples [1990] Crim. L.R. 198 | Family protection order did not revoke consent. | Contrasted and ultimately not followed. |
| Reg. v. Caswell [1984] Crim. L.R. 111; Reg. v. Kowalski [1987] Cr. App. R. 339; Reg. v. H. (unreported, 5 Oct 1990) | Indecent assault charges for preliminary acts despite exemption. | Shown as judicial “contortions” caused by the fiction of implied consent. |
| Reg. v. C. (Rape; Marital Exemption) [1991] 1 All E.R. 755 | Single-judge decision rejecting the exemption entirely. | Approved as the “only defensible stance.” |
| Reg. v. J. (Rape; Marital Exemption) [1991] 1 All E.R. 759 | Held exemption preserved by 1976 Act. | Rejected by the House of Lords. |
| Reg. v. S. (unreported, 15 Jan 1991) | Accepted exemption but recognised new exception where a family protection order existed. | Rejected by implication. |
| Reg. v. Chapman [1959] 1 Q.B. 100 | Interpreted “unlawful” as “illicit” (outside marriage). | Distinguished; House held word “unlawful” is surplusage in 1976 Act. |
| McMonagle v. Westminster City Council [1990] 2 A.C. 716 | Example of treating “unlawful” as surplusage. | Used to support surplusage interpretation in 1976 Act. |
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:
- 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.
- 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.
- 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.
- 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.
- 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.
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