R v R (Rape: Marital Exemption)

A husband may be guilty of raping his wife. Marriage does not give irrevocable consent to sexual intercourse, and the supposed common law marital exemption forms no part of modern English law.

Section 1(1) of the Sexual Offences (Amendment) Act 1976 does not preserve the exemption. The word “unlawful” adds nothing to the statutory definition and may be treated as surplusage. Removing the exemption is a legitimate development of the common law. It removes an anachronistic legal fiction rather than creates a new offence.

The appellant and his wife had separated after matrimonial difficulties. She moved to her parents’ home and indicated that she intended to seek a divorce. The appellant later forced his way into that home, attempted intercourse against her will and assaulted her.

After the trial judge rejected a submission that a husband could not rape his wife, the appellant pleaded guilty to attempted rape and assault occasioning actual bodily harm. The Court of Appeal dismissed his appeal in [1991] 1 All ER 747, but certified the question whether a husband is criminally liable for raping his wife.

The House considered whether the common law marital exemption remained valid and whether section 1(1) of the Sexual Offences (Amendment) Act 1976 prevented its abolition.

1. The appeal was dismissed unanimously. Lord Keith of Kinkel delivered the leading speech. Lords Brandon of Oakbrook, Griffiths, Ackner and Lowry agreed with his reasons. The certified question—whether a husband is criminally liable for raping his wife—was answered affirmatively.

2. Per Lord Keith, Hale’s proposition that marriage supplied a wife’s irrevocable consent to sexual intercourse reflected an obsolete conception of marriage. Modern marriage is a partnership of equals. A wife is not a subservient chattel and does not consent by marriage to intercourse in all circumstances, including intercourse obtained by force. The supposed marital exemption therefore lacked any continuing justification.

3. The common law can evolve with social, economic and cultural change. The courts had already departed from the supposedly irrevocable character of marital consent by recognising exceptions involving court orders, decrees nisi, undertakings and separation agreements. Those developments exposed the fiction’s incoherence. The distinction drawn in Reg v Miller between criminal violence used to obtain intercourse and the supposedly lawful intercourse itself was particularly illogical.

4. Per Lord Keith, section 1(1) of the Sexual Offences (Amendment) Act 1976 did not preserve the exemption. In this context, “unlawful” did not mean “outside marriage”. That construction would have abolished the recognised exceptions because intercourse within an exception still occurred during marriage. Parliament could not reasonably have intended that result. The word added nothing to the requirement of intercourse without consent and was surplusage.

5. The House approved the Court of Appeal’s conclusion that abolition did not create a new offence. It removed an anachronistic and offensive common law fiction. The supposed marital exemption accordingly formed no part of the law of England, and the conviction for attempted rape stood.

1. House of Lords: Dismissed the appeal unanimously and affirmed that a husband may be criminally liable for raping his wife.
2. Court of Appeal (Criminal Division): In [1991] 1 All ER 747, dismissed the appeal, certified a point of law of general public importance and granted leave to appeal.
3. Leicester Crown Court: Owen J rejected the marital-immunity submission. The appellant then pleaded guilty to attempted rape and assault occasioning actual bodily harm.