R. v R

The House of Lords held that the long‑standing common‑law rule that a husband could not be guilty of raping his wife (derived from Sir Matthew Hale) no longer forms part of the law of England. In doing so the court considered the wording of section 1(1) of the Sexual Offences (Amendment) Act 1976 and concluded that the word "unlawful" does not prevent the common law from developing so as to abolish the marital exemption. The court therefore ruled that a husband can, in principle, be criminally liable for rape of his wife. The court also noted, as a subsidiary point, that even if some remnants of the old rule remained, established exceptions (for example where the wife has withdrawn from cohabitation or where a court order/undertaking revokes implied consent) operate to permit prosecution.

This is a criminal appeal against convictions for attempted rape and assault occasioning actual bodily harm. The appellant and complainant were married; following separation the wife was living with her parents and had indicated an intention to seek divorce. The appellant forced entry into the parents' home and attempted sexual intercourse against the wife's will and assaulted her. At first instance the judge rejected the submission that a husband could not be guilty of rape on his wife and concluded that the wife's implied consent (if any) had been revoked by withdrawal from cohabitation and by conduct indicating an end to matrimonial relations. The appellant pleaded guilty to attempted rape and assault and appealed against conviction.

The central legal issues were:

• whether the common‑law marital exemption to rape (as stated by Sir Matthew Hale) remains part of English law;
• the effect of section 1(1) of the Sexual Offences (Amendment) Act 1976 (the use of the word "unlawful"); and
• whether any exceptions to an exemption survive (for example court orders, undertakings, separation or withdrawal from cohabitation).

The House of Lords examined the historical authorities (including Hale, Reg. v. Clarence, Rex v. Clarke and subsequent decisions) and recent first‑instance rulings (including the Scottish decision S. v. H.M. Advocate and English Crown Court rulings). The court analysed three possible approaches to s.1(1) of the 1976 Act (literal preservation of the exemption, a compromise preserving limited exceptions, or abolition of the fiction) and concluded that the marital exemption was anachronistic and based on a fiction inconsistent with modern marital status and concepts of consent. The word "unlawful" in the 1976 Act was treated as surplusage for this purpose and not an insuperable bar to development of the common law. For those reasons the House of Lords dismissed the appeal and affirmed that a husband may be criminally liable for raping his wife. The court added that, even if any residual rule were retained, established exceptions (for example withdrawal from cohabitation or court orders) would have permitted prosecution in the present facts.

Appeal dismissed. The House of Lords held that the marital exemption to the crime of rape (as stated in Hale) no longer forms part of the law of England; a husband can be criminally liable for raping his wife. The court analysed historical authorities and the wording of section 1(1) of the Sexual Offences (Amendment) Act 1976, treating the word "unlawful" as not preventing abolition of the fiction. The court also noted that, even under prior case law, withdrawal from cohabitation or a court order could revoke any implied consent.

Conviction at Crown Court at Leicester; appeal to the Court of Appeal (Criminal Division) which delivered a reserved judgment dismissing the appeal on 14 March 1991; leave to appeal to the House of Lords granted and appeal heard before the House of Lords, judgment delivered 23 October 1991 ([1991] UKHL 12).