R v R

The House of Lords held that the old common-law marital exemption to the crime of rape no longer forms part of the law of England. The court reviewed the historical authority (notably Hale) and subsequent decisions and concluded that a wife does not give irrevocable consent to sexual intercourse by marriage and that such consent may be withdrawn. The court considered whether section 1(1) of the Sexual Offences (Amendment) Act 1976 obstructed this conclusion and decided it did not; the word "unlawful" in that subsection was treated as surplusage in the context and not a bar to recognising that a husband may rape his wife. The certified question—whether a husband is criminally liable for raping his wife—was answered in the affirmative.

This appeal arose from convictions entered at Leicester Crown Court (30 July 1990) upon the appellant's guilty pleas to attempted rape and assault occasioning actual bodily harm, the alleged victim being his wife. The appellant forcibly entered the house of his wife's parents and attempted intercourse against her will. He appealed to the Court of Appeal (Criminal Division), which dismissed the appeal on 14 March 1991 but certified the question of general public importance whether a husband can be criminally liable for raping his wife; leave to appeal to the House of Lords was granted.

Nature of the relief sought: The appellant sought reversal of the Court of Appeal's decision and contended that as a matter of law a husband could not be guilty of raping his lawful wife.

Issues framed:

• Whether the common-law marital exemption to rape survives in modern English law.
• Whether section 1(1) of the Sexual Offences (Amendment) Act 1976 prevents the court from abolishing any marital exemption.
• How historical authorities and later cases should be treated in light of social and legal developments affecting the status of married women.

Reasoning and outcome: The House undertook a historical and principled review of Hale and subsequent English and Scottish authorities, including recent Scottish authority that had repudiated any marital exemption. The court found Hale's proposition inconsistent with modern conceptions of marriage as a partnership of equals and with the notion that a wife may not be protected from assault. The court analysed English case law which had eroded parts of the exemption and concluded there was no sound reason to preserve it. It considered statutory context, in particular section 1(1) of the Sexual Offences (Amendment) Act 1976, and rejected the argument that that provision preserved a marital exemption. The appeal was dismissed and the certified question answered in the affirmative: a husband can be guilty of raping his wife.

Appeal dismissed. The House held that the common-law marital exemption in rape is no longer part of English law because marriage does not confer irrevocable consent to sexual intercourse; consent may be withdrawn and criminal liability may arise. Section 1(1) of the Sexual Offences (Amendment) Act 1976 does not prevent this conclusion.

Convicted at Leicester Crown Court on 30 July 1990. Appeal to the Court of Appeal (Criminal Division) dismissed on 14 March 1991; that court certified the question of general public importance and granted leave to appeal to the House of Lords. Appeal to the House of Lords determined 23 October 1991 ([1991] UKHL 14).