Overturning the law that did not recognise rape within marriage
In 1736 Chief Justice Hale ruled that “the husband cannot be guilty of rape committed by himself upon his lawful wife”, on the grounds that marriage itself counts as consent for as long as the couple are together.
For many years there was no challenge to Hale’s ruling until R v Clarke in 1949, one of the first cases that allowed the husband to be charged with rape. The court decided that Chief Justice Hale’s exemption could not be held in this case, because the wife had already obtained a non-cohabitation order from a magistrate’s court. The non-cohabitation order meant that she had withdrawn her consent.
There are at least four recorded instances of a husband successfully relying on the exemption as a defense to the charge of rape in England and Wales. The first was R v Miller (1954), where it was argued that the wife had not revoked her consent despite having presented a divorce petition. The argument defense was not upheld and the husband was instead convicted of indecent assault.
The crucial case
In Regina v R (1991) the husband had been charged with rape upon his wife and actual bodily harm (ABH). The wife had left to live with her parents but there was no formal separation, although the wife had consulted solicitors. The prosecution claimed that the husband had broken into her parents’ home and raped her.
The defence argued that there was no such offence, because of the marriage exemption. The case was appealed until it reached the House of Lords. The judgment was given by Lord Keith of Kinkel who said that the contortions being performed in the lower courts in order to evade the marital rights exemption demonstrated how absurd the rule was. He said that, the marital rights exemption was a “common law fiction” which had never been a true rule of English law. Kinkel concluded that “the fiction of implied consent has no useful purpose to serve today in the law of rape” R’s appeal was accordingly dismissed, and he was convicted of the rape of his wife.
