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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
    1. Entick v Carrington (1765) 19 St. Tr. 1030
    2. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
    3. Liversidge v Anderson and Another [1942] AC 207; [1941] 3 All ER 338
    4. London Tramway Co. v London County Council [1898] AC 375
    5. Harris v Minister of the Interior (no.2) (1952) 4 SA 769; in the Appellate Division of the Supreme Court of South Africa
    6. Collins v Minister of the Interior [1957] 1 SA 552 (AD); in the Appellate Division of the Supreme Court of South Africa.
    7. R v Inland Revenue Commissioners and others, ex parte Rossminster Ltd (CA) [1980] AC 952; [1979] 3 All ER 385
    8. R v Medical Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574 (CA)
    9. Anisminic v Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 208
    10. Practice Direction - Judicial Precedent [1966] 3 All ER 77 (HL)
    11. R v R (Rape: marital exemption) [1991] 4 All ER 481
    12. R v C [2004] EWCA Crim 292: [2004] 3 All ER 1: [2004] 1 WLR 2098 (CA).
    13. Re Spectrum Plus Ltd [2005] UKHL 41; [2005] 4 All ER 209
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v R (Rape: marital exemption) [1991] 4 All ER 481

LORD KEITH OF KINKEL:....Sir Matthew Hale in his History of the Pleas of the Crown wrote (1 Hale PC (1736) 629):

"But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract"....

In the first edition of Archbold A Summary of the Law Relative to Pleading and Evidence in Criminal Cases (1822) p 259 it was stated, after a reference to Hale: "A husband also cannot be guilty of a rape upon his wife".

For over 150 years after the publication of Hale's work there appears to have been no reported case in which judicial consideration was given to his proposition. The first such case was R v Clarence (1888) 22 QBD 23,[1886(90] All ER Rep 133, to which I shall refer later. It may be taken that the proposition was generally regarded as an accurate statement of the common law of England. The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale's proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail....[O]ne of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable....

On grounds of principle there is now no justification for the marital exception in rape.

It is now necessary to review how the matter stands in English case law. In R v Clarence (1888) 22 QBD 23,[1886(90] All ER Rep 133 a husband who knew that he suffered from a venereal disease communicated it to his wife through sexual intercourse. He was convicted on charges of unlawfully inflicting grievous bodily harm contrary to s 20 of the Offences against the Person Act 1861 and of assault occasioning actual bodily harm contrary to s 47 of the same Act. The convictions were quashed by a court of 13 judges for Crown Cases Reserved, with four dissents. Consideration was given to Hale's proposition, and it appears to have been accepted as sound by a majority of the judges....

In R v Clarke [1949] 2 All ER 448 a husband was charged with rape upon his wife in circumstances where justices had made an order providing that the wife should no longer be bound to cohabit with the husband. Byrne J refused to quash the charge. He accepted Hale's proposition as generally sound...., but said (at 449):

"The position, therefore, was that the wife, by process of law, namely, by marriage, had given consent to the husband to exercise the marital right...but by a further process of law, namely, the justices' order, her consent to marital intercourse was revoked. Thus, in my opinion, the husband was not entitled to have intercourse with her without her consent".

In R v Miller [1954] 2 All ER 529, [1954] 2 QB 282 the husband was charged with rape of his wife after she had left him and filed a petition for divorce. He was also charged with assault upon her occasioning actual bodily harm. Lynskey J quashed the charge of rape but refused to quash that of assault. He proceeded on the basis that Hale's proposition was correct, and also that R v Clarke [1949] 2 All ER 448 had been rightly decided, but took the view that there was no evidence which entitled him to say that the wife's implied consent to marital intercourse had been revoked by an act of the parties or by an act of the court.... As regards the count of assault, having referred to R v Jackson [1891] 1 QB 671, where it was held that a husband had no right to confine his wife in order to enforce a decree for restitution of conjugal rights, he said:

"...[A]lthough the husband has a right to marital intercourse, and the wife cannot refuse her consent, and although if he does have intercourse against her actual will, it is not rape, nevertheless he is not entitled to use force or violence for the purpose of exercising that right. If he does so, he may make himself liable to the criminal law, not for the offence of rape, but for whatever other offence the facts of the particular case warrant. If he should wound her, he might be charged with wounding or causing actual bodily harm, or he may be liable to be convicted of common assault....".

So the case had the strange result that although the use of force to achieve sexual intercourse was criminal the actual achievement of it was not. Logically, it might be thought that if a wife be held to have by marriage given her implied consent to sexual intercourse she is not entitled to refuse her husband's advances, and that if she resists then he is entitled to use reasonable force to overcome that resistance. This indicates the absurdity of the fiction of implied consent....

The next case is R v O'Brien [1974] 3 All ER 663, when Park J held that a decree nisi effectively terminated a marriage and revoked the wife's implied consent to marital intercourse, so that subsequent intercourse by the husband without her consent constituted rape. There was a similar holding by the Criminal Division of the Court of Appeal in R v Steele (1976) 65 Cr App R 22 as regards a situation where the spouses were living apart and the husband had given an undertaking to the court not to molest his wife. A decision to the like effect was given by the same court in R v Roberts [1986] Crim LR 188, where the spouses had entered into a formal separation agreement. In R v Sharples [1990] Crim LR 198, however, it was ruled by Judge Fawcus that a husband could not be convicted of rape upon his wife in circumstances where there was in force a family protection order in her favour and he had had sexual intercourse with her against her will....

There should be mentioned next a trio of cases which were concerned with the question whether acts done by a husband preliminary to sexual intercourse with an estranged wife against her will could properly be charged as indecent assaults: see R v Caswell [1984] Crim LR 111, R v Kowalski (1987) 86 Cr App R 339 and R v H (14 October 1990, unreported), Auld J. The effect of these decisions appears to be that in general acts which would ordinarily be indecent but which are preliminary to an act of normal sexual intercourse are deemed to be covered by the wife's implied consent to the latter, but that certain acts, such as fellatio, are not to be so deemed. Those cases illustrate the contortions to which judges have found it necessary to resort in face of the fiction of implied consent to sexual intercourse....

[T]here have been three further decisions by single judges. The first of them is R v C ( (rape: marital exemption) [1991] 1 All ER 755. There were nine counts in an indictment against a husband and a co-accused charging various offences of a sexual nature against an estranged wife. One of these was of rape as a principal. Simon Brown J...held that the whole concept of a marital exemption in rape was misconceived. He said (at 758):

"Were it not for the deeply unsatisfactory consequences of reaching any other conclusion on the point, I would shrink, if sadly, from adopting this radical view of true position in law. But adopt it I do. Logically, I regard it as the only defensible stance, certainly now as the law has developed and arrived in the late twentieth century....".

A different view was taken in the other two cases, by reason principally of the terms in which rape is defined in s.1(1) of the Sexual Offences (Amendment) Act 1976, viz:

"For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if ( (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at the time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it"....

The position then is that that part of Hale's proposition which asserts that a wife cannot retract the consent to sexual intercourse which she gives on marriage has been departed from in a series of decided cases. On grounds of principle there is no good reason why the whole proposition should not be held inapplicable in modern times. The only question is whether s 1(1) of the 1976 Act presents an insuperable obstacle to that sensible course. The argument is that 'unlawful' in the subsection means outside the bond of marriage. That is not the most natural meaning of the word, which normally describes something which is contrary to some law or enactment or is done without lawful justification or excuse....

In my opinion there are no rational grounds for putting the suggested gloss on the word, and it should be treated as being mere surplusage in this enactment....

I am therefore of the opinion that s 1(1) of the 1976 Act presents no obstacle to this House declaring that in modern times the supposed marital exception in rape forms no part of the law of England. The Court of Appeal, Criminal Division took a similar view. Towards the end of the judgment of that court Lord Lane CJ said ([1991] 2 All ER 257 at 266, [1991] 2 WLR 1065 at 1074):

"The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it".

I respectfully agree.