R V R Case: The Elimination Of The Marital Rape Exemption

Please read the judgment from the case of R v R [1991] 4 All ER 481 and then prepare written answers to the questions below.

Explain, in your own words, the legal issue(s) in the case.

Both the Court of Appeal (as included in the HL decision) and Lord Keith of Kinkel in the House of Lords cite a number of earlier cases in R v R [1991], For example, R v Clarke [1949]; R v Miller [1954]; R v O’Brien [1974]; R v Steele [1976].
Why they do this?

What do such citations add to the judgement?

What is the ratio decidendi of the House of Lords?

What is the significance of the term ‘unlawful’ in s.1(1) of the Sexual Offences (Amendment) Act 1976?

Lord Lane CJ in the Court of Appeal identified 3 'solutions' to the interpretation of the word ‘unlawful’.

Which approach did the House of Lords follow, and why?

Background of R v R Case

The case of R v R is related with the norms of law, in which interpretation of wordings of law may lead to unjust decision in the changing scenario. In this case, husband (accused party) was convicted for sexual assault with his wife, by which she suffered from severe injuries. Due of this incident, the wife started living with her parent and left to her husband by taking advise from legal practitioner. However there was no legal separation takes place between the wife and husband. Moreover the institution related with the crime charged contented that the husband is also responsible for the damage of the residential house of wife’s parents along with marital rape charges.

The accused argued that there is no such crime committed by him by giving justification of exemption of martial rape according to the common law. Further the husband R, argued that it was not probable for a husband to rape of wife as after the marriage it was the right of the husband to enter into the sexual relationship with his wife and it cannot be withdraw by the wife subsequently.  Moreover traditionally marriages is regarded as an foundation, by which the husband is entitled to get the control over his wife and with this regards control by entering into the sexual relationship is only a part of a more control. In layman language, he firmly believed that after the marriage the wife gave the irrevocable consent to her husband for sexual intercourse.

As per the principle of the English law, it has been stated that, it cannot be expected that the husband could rape his wife. With this regards, R v R is the first case in which the appeal made to the House of Lords related with the issues of martial rape exemption.

For addressing the issues stated in the R v R case, the court has taken into account the various previous judgements given by the other court of appeal as well as house of lord. The cases are similar with the issues contained in the R v R case; therefore it is essential to consider the results of the previous cases.

In the opinion of the Sir Matthew Hale, marriages require permanent consent and after this several judges, have retained the legal opinion; that with the sexual relationship is implied. However it is not supported by any legal rule, but trusted by the judges as a reasonable result of the law of marriages.

Previous Cases of Marital Rape Exemption

The opinion of the Hale is not challenged for several years, but in the case of R v Clarke in 1949, the husband was convicted for the charge of marital rape. In this case, the court held that the marital rape exemption given under the English law cannot apply here because in this case, because wife had already taken the non-cohabitation permission from the court. In other words, the wife has already withdrawn her consent for living together with husband. The conclusion was given by Lord Keith of Kinkel, who held that the expression being executed in the subordinate court with respect to avoid the martial rights exemption as per the common law rule, was not regarded as the reliable and true rule of the English law. The court also stated that in the present law of rape the fiction of implied consent has no significant meaning. In the English law, marital rape exemption did not be real therefore the husband found guilty of the rape of his wife.

On the other hand, in the case of R v Miller (1954), the court held that the appellant could not be found guilty of rape as after the marriage there is implied consent given by the wife for sexual intercourse and it can be rescinded only by the order of the court or by the compulsory separation agreement.

In the case of R v Steele (1976), the court held that if the husband and wife are not living together and husband obtained the permission from the court for not accused of his wife then it revoked the implied consent of the wife for sexual intercourse.

By considering all the above judgement, in the case of R v R, the court held that, in the recent time the concept of the implied consent by the wife is not acceptable. The relationship between the people does not matter for considering the impact of rape. Further the court contended that the rape is rape, whether it is done by husband or any other person. Therefore in the given case, the husband was convicted for the rape of his wife.

The ratio decidend is refers as the legal, moral, social, and political standard on which the judgement of lord court is based. In the present case of R v R (1992), the Lord Keith of Kinkel had given the opinion that the fiction of implied consent is no longer acceptable in the current scenario.  The R v R case is the result of where the wordings of the law is clear and unambiguous, however if the wordings apply then the result was not good.  In the opinion of the Hale, marriages are considered as the implied consent given by the wife for the sexual relationship and cannot be revoked subsequently. However this opinion leads that the right of the woman was underpowered by her husband. The wife has no legal right for standing her own as well as she was regarded as the property of her husband.

Three Solutions Recognized by Lord Lane CJ of Appeal Regarding Interpretation of Term Unlawful

In the opinion of the Ronald Dworkin, at the time of interpretation of the law and rule, the court must consider the circumstances in which the issue arose. The best interpretation includes the right answer of the issue, and the judge must discover the right answer as a matter related with law.

In the case of R v R, there was difficulty for judges in concluding the case in terms of the fairness of the powers within the marriages inclusive of facts related to the rights of wife over her body and martial rights of the husband. The house of Lord stated that marital rape exemption is founded on no reality and therefore after sometime it was eliminated, which restore the parity to the marriage life of the husband and wife.

With accordance to section 1 (1) of Sexual Offense Act 1956 which is concerned with rape, a man perpetrates rape if:

1. He attempts unlawful sexual association with female who did not provided her consent during the intercourse.
2. In case he attempts for reckless behaviour even if no acceptance has been received regarding acceptance or she agrees for same.

Thus, unlawful can be interpreted as an act which has been conducted without consent of another person.

The three solutions recognized by Lord Lane CJ of Appeal regarding interpretation of term unlawful are:

Literal Solution: The sexual offense act 1976 through stating rape as it did and entails the term unlawful through it apparent that husband’s resistance is preserves. Further no additional sense for the specific word excluding remote the bounds of marriage.

Compromise Solution: In this solution it has been specified that the term unlawful is to be created in a manner to leave intact exemptions to husband’s immunity in the manner which has been provided in Hale’s proposal from the judgment in Rex v. Clarke [1949] 2 All E.R. 448 onwards. Further it also provides to follow further exemptions as the occasion might take place.

Radical Solution: Hale’s proposition is dependent on fiction which is not sustainable with present time husband and wife. Further, for the reasons articulated through Lord Emslie S.v. H.M Advocate, 1989 S.L.T. 469, it is repulsive and unreasonable in that it allows a spouse (male) to be chastise for behaving with his spouse in brutality manner at the time of intercourse but not for rape itself . Thus, the act is believed as exasperated and cruel form of violence. Thus, the decision is based on similar approach in the case of Lord Halsbury L.C.

In 1991 the R v R house decision was conveyed. It was embraced by law lords in House of Lords that according to criminal law, the husband is allowed to commit rape of his spouse. The same was appeal till it arrive the Lords of House. Furthermore, Court of Appeal as well as House of Lords endorsed the conviction. Under October 1991, the decision was delivered in which it was stated that fiction of implicit consent has no valuable reason to exercise in present times under law of rape. Hence, court embraced marital rape exception does not subsists in English, therefore the he was found guilty for the rape of his spouse.

Along with this, the basis on which decision is passed by the court is radical solution approach. Under this approach it is stated it does not lead to formation of a new crime, it is exclusion of common law fiction and same has developed obsolete and disagreeable. Moreover, it is believed that it is the responsibility of court to reach on a conclusion so that action can be taken upon it. Lord Keith consents with statement passed by Court of Appeal that marital rape exception was based on a fiction which cannot be accepted in present time. In other words it can be stated that hypothetical marital exemption in rape is no more part of statute of England. In addition to this, House of Lords also have taken into consideration the term unlawful in definition of unlawful rape in accordance with specified section of Offences Act 1976 comprising wedded rape. Thus, courts concluded that, unlawful were surplus age and with accordance to act each rape is illegitimate

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