There was once a generally accepted legal doctrine that men could not commit the crime of rape against their wives. This was evident by the pronouncement of Sir Matthew Hale in his History of the Pleas of the Crown, where he said that the husband cannot be guilty of a rape committed by himself upon his lawful wife. Hale’s justification for his statement was that, on marriage, the wife gave up her body to her husband and gave her irrevocable consent to sexual intercourse.
However, by the 20th century, social circumstances and attitudes had changed so much that the law had reached a state of crisis that required the total rejection of the doctrine. In R V CLARKE, Byrne J held that the husband’s immunity was lost where the justices had made an order providing that the wife should no longer be bound to cohabit with the defendant. In R V STEELE, it was held that where a husband and wife are living apart and the husband has made an undertaking to the court not to molest he wife, that is in effect equivalent to the granting of an injunction and eliminates the wife’s implied consent to sexual intercourse. So, the courts had developed the doctrine the implied consent as a means of mitigating the stark harshness of Hale’s original doctrine.
However, in R V J(RAPE:MARITAL EXEMPTION) (1991), the argument was bases on statutory interpretation. The wording of s.1(1) of the Sexual Offences (Amendment) Act 1976 provided that a man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it. The contention was that the Act of 1976 provided a statutory definition of rape and that the only possible meaning which could be ascribe to the word “unlawful” was “illicit”, effectively meaning outside the bounds of matrimony. Consequently, Parliament’s intention must have been to preserve the husband’s immunity.
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Thus stood the authorities when R V R was heard by the Court of Appeal in 1991. The court was clearly of the view that the ancient rule had to be removed, but how was that to be achieved?
Lord Lane, who delivered the decision of the court, stated that “the abolition of a rule of such long standing is a task for the legislature (Parliament), and not the courts. Ever since the decision of Byrne J in R V CLARKE, the courts have been paying lip service to the Hale proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply. This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes. Where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant parliamentary enactment.”
In respect of Hale’s proposition, the court had to say that it never was law.
The statutory provision of 1976 remained and was dealt with as follow – “the only realistic explanation seem to us to be that the draftsman either intended to leave the matter open for the common law to develop in that way….or, perhaps more likely, that no satisfactory meaning at all can be ascribe to the word and that is indeed surplusage.”
HOUSE OF LORDS unanimously followed the decision and reasoning of the Court of Appeal. Their Lordships agreed that Hale’s pronouncenment never was law; it was always a fiction that had infiltrated the common law. As for the interpretation of the Sexual Offences (Amendment) Act 1976, the appearance of “unlawful” was mere surplusage. Subsequently, the word “unlawful” was removed from the definition of rape under the Criminal Justice and Public Order Act 1994.
Thus the fiction of marital consent was removed forever, and stands the law in UK that a man can be liable for the crime of rape against his wife. The law was declared that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.
