Regina v R

A husband may be criminally liable for raping his wife. Marriage does not confer irrevocable consent to sexual intercourse. The supposed marital exemption is an anachronistic common law fiction and forms no part of modern English law. Consent must be determined from the circumstances on the particular occasion.

The common law may evolve with social, economic and cultural change. Removing this fiction does not create a new offence. In the statutory definition of rape, “unlawful” does not restrict rape to intercourse outside marriage. In that context the word is surplusage.

The appellant and his wife were living apart after she had announced an intention to seek a divorce. He forced his way into her parents’ home, attempted intercourse against her will and assaulted her. Owen J rejected his submission that a husband could not rape his wife. The appellant then pleaded guilty to attempted rape and assault occasioning actual bodily harm.

The Court of Appeal (Criminal Division) dismissed his appeal and certified the question whether a husband is criminally liable for raping his wife. The House considered the common law proposition that marriage supplied irrevocable consent, the exceptions developed in later cases, and section 1(1) of the Sexual Offences (Amendment) Act 1976.

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

2. Per Lord Keith, the common law can evolve in response to changing social, economic and cultural conditions. The proposition attributed to Hale reflected an age when a married woman was regarded as subject to her husband. Modern marriage is a partnership of equals. The idea that marriage supplies irrevocable consent to intercourse in every circumstance is unacceptable.

3. The supposed exemption produced irrational distinctions. It permitted punishment for the violence used to obtain intercourse while excluding liability for the intercourse itself. The exceptions concerning separation, court orders and agreements also demonstrated that the supposed consent was not truly irrevocable. The fiction served no useful purpose. The decisive factual question is whether the wife consented to the intercourse complained of.

4. Lord Keith adopted the substance of the reasoning in S v HM Advocate 1989 S.L.T. 469. On principle, there was no justification for retaining a marital exception in England. Decisions treating particular events as revoking implied consent represented departures from Hale’s proposition but did not justify preserving its remainder.

5. Section 1(1) of the Sexual Offences (Amendment) Act 1976 did not preserve the exemption. “Unlawful” did not mean “outside the bond of marriage”. That construction would have abolished the existing common law exceptions unless an artificial gloss were added. In this provision the word added nothing and was surplusage.

6. Declaring the exemption obsolete was a legitimate development of the common law. It removed an anachronistic and offensive fiction; it did not create a new offence. The Court of Appeal’s order was affirmed.

1. House of Lords: The appeal was dismissed unanimously on 23 October 1991. The Court of Appeal’s order was affirmed, and the certified question was answered affirmatively.

2. Court of Appeal (Criminal Division): Lord Lane CJ, Sir Stephen Brown P, Watkins, Neill and Russell LJJ dismissed the appeal on 14 March 1991, certified a point of law of general public importance and granted leave to appeal.

3. Leicester Crown Court: Owen J ruled that any supposed marital consent was capable of withdrawal. The appellant pleaded guilty to attempted rape and assault occasioning actual bodily harm and received concurrent terms of three years and 18 months’ imprisonment.