Today we are going to take a look at a really important case in English and Welsh criminal law, one that made headlines and overturned a centuries old legal principle that should never have existed if anybody had bothered to do their job properly over the previous couple of hundred years.
On the 12th November 1989, Mr R telephoned his wife, who had left the family home with their young child, some 22 days earlier to live with her parents. Mr R told his wife that he planned to “see about a divorce”. Mrs R’s parents were out at around 9pm that night when Mr R attended his in-law’s home. He forced his way inside and attempted to have sex with his wife against her wishes, choking her as he did so.
Mrs R made a complaint to the police and Mr R was arrested. He was interviewed and made full admissions to the assault and attempted rape. It may not have been a surprise to learn that he was charged with assaulting his wife but it may well have come as a shock to the lawyers of the day to hear he was also charged with attempted rape. You see for the 253 years before Mr R attacked his wife the accepted legal position had been that upon marriage the wife consented to sex with her husband. Between 1736 and 1949 the wife could not withdraw her consent while the marriage subsisted, so no didn’t mean no – no meant nothing as a wife had no right to say it! In 1949, the courts accepted that a court could make an order withdrawing the wife’s consent but it wasn’t until 1991 that a court ruled a wife had the right to say no to her husband.
The case that overturned that centuries old law: Regina v R  3 WLR 767.
For what its worth, my opinion is that legally speaking this notion that a husband was immune from a charge of raping his wife was always utter nonsense. I’m not talking morally, I’m talking legally – the only reason this rule existed was because not enough people did the most basic legal analysis and actually looked for some authority for this principle.
In ye olden days, a marriage was not a partnership of equals who joined together to forge a life for each other. Marriage may well have been contracted through love but I get the distinct feeling that in a lot of cases, particularly among the wealthy, marriage was all about marking a good match (whether that was for the couple or their families) and that hopefully love would follow. A woman marrying in the 1700s did not join her husband in partnership; her entire legal identity disappeared as it was subsumed into that of her husband. Thus, a married woman could not contract her own behalf nor could she own property. So, any property she owned at the start of the marriage became her husbands, she might own it legally but only the husband could deal with it. Any inheritance she received during the marriage became her husband’s property not her own. Any income she earned belonged to her husband. When you view marriage not as a partnership between two individuals but as a union literally fusing the legal identity of the woman into that of the man’s you start to see how the notion that a wife has no right to refuse her husband’s sexual whims arose.
The legal authority (and I use the word “authority” very loosely in this context) that a husband had an absolute right to have sex with her wife comes from a comment in a legal text book published in 1736 called the History of the Pleas of the Crown when Sir Matthew Hale wrote:
“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”
Matthew Hale had been Chief Justice for five years but he also died in 1676, 60 years before the History of the Pleas of the Crown was published. I am writing this in 2017 – 60 years ago was 1957, not only was my dad only 15 years old but more importantly the law since then has changed beyond recognition. Sir Matthew did not think to cite any authority for his claim so while it may have been perfectly true when he wrote it sometime before 1676 it is entirely possible that the law had changed in the 60+ years between writing and publication. It also must be said that without any authority for his claim it is one that should always have been treated with extreme scepticism, especially when one notes that other legal textbooks exist from the time (e.g. Coke, Glanvill, Bracton and Dalton) and they do not mention the marital rape exception.
We jump forward now 152 years to join the Crown Cases Reserved court, a long since defunct Victorian appellate court, whose 13 judges are deciding the case of R v Clarence (1888) 22 QBD 23. Sir Matthew’s assertion did meet some scepticism from two of the judges, e.g. when Field, J. said:
“The authority of Hale C.J. on such a matter is undoubtedly as high as any can be, but no other authority is cited by him for this proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, in the husband imposed it by violence, he might be held guilty of a crime”
Wills, J. also said that he was unwilling to accept that a husband cannot be guilty of raping his wife and noted that it is a proposition, “… for which there seems to me to be no sufficient authority.”
Hawkins, J. seemed to take the view that a wife cannot withdraw her consent unless it would be dangerous to her health:
“Rape consists in a man having sexual intercourse with a woman without her consent, and the marital privilege being equivalent to consent given once for all at the time of marriage, it follows that the mere act of sexual communion is lawful; but there is a wide difference between a simple act of communion which is lawful, and an act of communion combined with infectious contagion endangering health and causing harm, which is unlawful. It may be said that assuming a man to be diseased, still as he cannot have communion with his wife without contact, the communication of the disease is the result of a lawful act, and, therefore, cannot be criminal. My reply to this argument is that if a person having a privilege of which he may avail himself or not at his will and pleasure, cannot exercise it without at the same time doing something not included in this privilege and which is unlawful and dangerous to another, he must either forego his privilege or take the consequences of his unlawful conduct.”
These comments had no real bearing in law – although arguably more than Sir Matthew’s assertion – because they were merely obiter dicta and dissenting judgments. Clarence was a case in which the husband had consensual sex with his wife and infected her with gonorrhoea. There was a question whether the wife would have consented to sex had she known of her husband’s infection but that was held to be irrelevant because she had in fact consented. It should be noted that in Clarence the husband was charged not with rape but with an assault and was acquitted on appeal because his wife had consented and so no assault or battery had occurred, a slightly different position to an allegation of rape, particularly in the 1800s.
I mentioned earlier that in 1949 it was decided that a court could make an order bringing the wife’s implied consent to an end, that was a case called R v Clarke  2 ALL ER 448. In Clarke, a magistrates’ court made a separation order on the 2nd March 1949. On the 12th March 1949, the husband had sex with the wife. He was subsequently charged with rape and assault occasioning ABH. The defence sought to stay the rape allegation on the basis it was an offence not known to law citing Sir Matthew Hale’s book as proof of that. Mr Justice Byrne sitting at the Leeds Assizes agreed that Sir Matthew’s opinion of the law was correct, albeit once again his opinion was a bald assertion backed up by no authority whatsoever; however, Byrne, J. held that although the marriage still existed at the time of the allegation the wife’s implied consent had been rescinded by the magistrates on the wife’s behalf when they made the separation order. On the basis, the defendant was arraigned, entered a not guilty plea to both counts and was acquitted by the jury following a trial.
In R v Miller  2 W.L.R. 138, Mrs Miller had petitioned for divorce when her husband had sex with her against her will. The facts are long and complicated involving adultery by the wife that resulted in her giving birth to a child and allegations of adultery by the husband that were denied, all in all it sounds like a very messy case. Whatever the truth of the goings on, Lynskey, J. had little sympathy for a wife refusing her husband sex even after she had left him and petitioned for divorce. He appeared to take the view that a wife could not withdraw consent herself but must ask permission of a court:
“Can I say that because the wife has left her husband and has brought a petition for divorce that one must infer a revocation of the wife’s implied consent? I have considered the matter very carefully, and I cannot see that, because a petition for divorce has been presented, that has any effect in law upon the existing marriage. It is not until a decree nisi, or possibly a decree absolute, has been pronounced that the marriage and its obligations can be said to have been terminated.”
Interestingly Miller considered and followed R v Jackson  1 Q.B. 671 in which a court had ordered a wife to return to the marital home. She refused and was taken there by force then kept locked in the house. The husband forced himself up her. In Jackson, it was held that while the husband had the right to require his wife to have sex with him he was not entitled to use force to achieve that aim and he was thus guilty of an assault upon her. I cannot be alone in thinking that a situation where a husband can be guilty of a lesser assault on his wife but not of a greater assault, i.e. rape, is a pretty bizarre situation that leaves one seriously questioning what thought was put into these decisions.
In the 1970s the Court of Appeal heard the case of R v Steel (1976) 65 Cr App R 22 and held that where husband and wife are living apart and the man undertakes not to molest his wife then the court must ask itself whether there is an agreement between the husband and wife that the wife’s consent to sexual intercourse no longer exists. Now you don’t have to be a lawyer to see just how silly this position is: the question is whether the wife has withdrawn her implied consent to sex but the test is whether the husband, who is accused or rape, has agreed to this.
So, we have a position where the law is that a wife consents at marriage to sex with her husband and she cannot revoke that consent unless it’s dangerous to her health… or a court says she can withdraw her consent…. or her husband agrees to the withdrawal of consent. But, a husband who uses force to exercise his right to sex does commit an offence albeit one of assault not rape. Even if you ignore the fact that Sir Matthew Hale cited absolutely no legal authority for his original proposition the fact that courts are having to create so many exceptions to this rule should tell you that the original rule needs some more thought.
This was a situation that the Scottish courts found too ridiculous to bear and in Stallard v HM Advocate  SLT 469 held that even if the notion that a wife cannot refuse sex with her husband was sensible in the 18th or 19th century that time had long since past and that in the 20th century there was no plausible justification for saying that where a wife does not consent to sex with her husband she should be taken to have consented because she is married.
In July 1990, Simon Brown, J. ruled in R v C  1 Al ER 755 that the Scottish law position was the only defensible stance and stated that the law in England must be that there is no exception for husbands from the law of rape. That was a ruling given in the Crown Court and thus was not binding on other courts and appeared not to have been appealed.
It was against this historical background that R v R came to be heard first in the Court of Appeal and then by the House of Lords. By this time, somebody had decided to get some Queen’s Counsel involved so things took a distinctly intellectual term.
The Sexual Offences (Amendment) Act 1976 codified the offence of rape describing it as a man having “unlawful sexual intercourse with a woman who at the time does not consent to it”. It was that use of the word “unlawful” that caused problems. For some it meant “illicit” or outside the bounds of marriage. If that is correct then Parliament must have intended to preserve the husband’s marital rape exemption. Taken literally this would overrule all of the exceptions created by the courts over the years. If that is correct then why did Parliament not spell it out (did they even think about it I wonder). Alternatively, “unlawful” could mean that Sir Matthew Hale’s exemption from prosecution remains good law but so do all the exceptions.
Their Lordships identified a third pathway, which ignores the whole question of what does “unlawful” mean and simply attacks the legitimacy of the marital rape exception, in the words of the court, the third solution is to say that “Hale’s proposition is based on a fiction and moreover a fiction which is inconsistent with the proper relationship between husband and wife today.” The problem with this is that where you have such a longstanding rule it should be for Parliament to abolition it or so goes the conservative lawyers thinking. For what it is worth, I do not subscribe to this view. Merely because a rule is old does not mean it is correct either at the time it was promulgated or today – we tend to think of ancient wisdom as somehow worthy of respect because of its age but just because an idea is tenacious does not mean it is correct. Where a law is entirely judge made I do not see that a later judge can refuse to right an obvious wrong simply because that law is old.
The House of Lords took the view that it was inconceivable that Parliament intended to abolish the exceptions and that if it had intended to do so then it would have said so expressly in the Act. Considering whether Parliament intended to preserve both the marital rape exemption and the exceptions to it the House of Lords thought that it would be necessary to construe “unlawful” as meaning “outside of marriage or within marriage in a situation covered by one of the exceptions to the marital exemption”. Their Lordships took the view that this would be a unique definition of “unlawful” for rape cases and that had this been Parliament’s intention it would have said so – the court seems to have some doubts as to whether the draftsman ever considered the marital rape exceptions.
The conclusion of the House was that “[t]here 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 section 1(1) of the Act of 1976 presents no obstacle to this House declaring that in modern times the supposed marital exemption in rape forms no part of the law of England.”
With that flourish, the House of Lords finally brought to an end the longstanding legal myth that husbands had the absolute right to rape their wives at will.
As I’ve said several times in this post, Sir Matthew Hale cited no authority for his marital rape exemption and almost no judges questioned whether his statement was good law or not despite the lack of authority and the fact that no other textbook or case before him mentions this exemption. I cannot help the feeling that had judges been more willing to put some serious critical thought into whether this assertion was actually good law or not we would not have had a situation where in the latter part of the 20th century a man could lawfully force a woman to have sex with him and face absolutely no consequences as a result of that act.