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Shardul Chouhan, II year of LL.B.(IPR) from RGSOIPL, IIT Kharagpur

When their lordships announced their decision in R v R [1]cheers broke out in the public gallery of the House of lords from supporters of Women against Rape. Their spokesperson Claire Glasman said:

This is a fantastic day for women everywhere. The law lords have finally nailed a law which has somehow survived for nearly three centuries. . . . it overturns 250 years of legal sexual slavery which has been based not on a court case but an 18th-century judge decided that a husband could not rape his wife.[2]

The genesis of the marital rape exemption is unclear. It is commonly stated that it was first formalised in 1676 in the writings of the jurist Sir MatthewHale[3]:

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.”

Helen Fenwick [4] suggests that at the time Hale’s views could be seen as progressive because his exception only applied to married women and previously there had been statements that a man could never be guilty of raping a woman with whom he had previously had consensual sexual relations. Hale’s comments were picked up by the ecclesiastical courts in Popkin v. Popkin[5] where lord Stowell stated: ‘The husband has a right to the person of his wife’, though he added the important qualification, ‘but not if her health is endangered’. The very first edition of Archbold’s leading textbook on criminallaw[6] contained the clear statement that ‘[a] husband also cannot be guilty of a rape upon his wife’.

The assumption that married women consent to sex with their husband is no more bizarre than that woman who wears short skirts consent to sex with any man[7].In the second half of the twentieth century, however, the courts started to chip away at the exemption. First, although a husband could not be convicted of raping his wife, the courts were willing to convict husbands of assault or indecent assault against their wives, where injuries could be shown[8]. The courts started to develop a series of exceptions to the exemption. it was held not to apply in cases where courts had ordered the couple not to cohabit[9]; where there was a decree nisi[10]; a domestic violence protection order[11]; an undertaking from the husband not to molest the wife[12]; or a formal separation agreement between the parties[13]. it seemed that, with these exceptions, the courts were seeking to render Hale’s presumption of consent a revocable one.

The Decision R V R

The defendant and victim had married on 11 August 1984. Their only child, a son, was born in 1985. There was a brief separation in November 1987, but the couple reconciled after a couple of weeks apart. The wife left the husband in 1989 and returned, with her four-year-old son, to live with her parents. She told the defendant that she intended to divorce him. A decree nisi was granted on 3 May 1990. The husband forced his way into the wife’s parents’ house just before 9 o’clock on the evening of 12 November 1989, when her parents were out. He attempted to rape her and squeezed her neck tightly with his hands. He was charged with attempted rape and an assault occasioning actual bodily harm.

The Trial

At his trial, the husband raised the defence that the use of the word unlawful in section 1(1) of the sexual offences (Amendment) Act 1976 meant that a husband could not be guilty of raping his wife. The trial judge, Owen J, rejected that submission at R’s trial on 30 July 1990 at Leicester Crown Court. He adopted the accepted line that on marriage a wife gives consent to sexual intercourse at any time during the marriage. He then focused on the question of when such consent can be revoked by the wife. Owen J suggested that revocation of consent could take place if both parties agreed. He went further and suggested that, where parties separate and the wife indicates that she revokes the consent to sexual relations, this is effective as a withdrawal of consent, even if there is no specific agreement from the husband[14]. He held that on the facts of the case, an agreement could be found to live separately and that this amounted to a withdrawal of the consent to sexual relations. The husband accordingly pleaded guilty to attempted rape and the assault charge and was sentenced to three years’ imprisonment. He appealed to the Court of Appeal on the basis that Owen J’s ruling was incorrect.

The Court of Appeal

Before the Court of Appeal, R’s counsel argued that a husband could not be guilty of raping his wife because on marriage a wife consented to the husband’s exercise of his marital rights for the duration of the marriage, again basing this on the writings of Hale. it was argued that this approach had been supported by the courts ever since[15]. Sir Geoffrey lane traced the development of the law. He saw there being three solutions to the dilemma of how to understand the definition of rape in the 1976 Act: the literal solution, which held that the word ‘unlawful’ in the Actindicated that rape could only take place if the defendant and victim were not married to each other; the compromise solution, that ‘unlawful’ was to be interpreted to mean that the parties were not married to each other or one of the exemptions that had been developed in the case law applied; or the radical solution, namely to do away with the marital rape exemption altogether. He did not find any of these attractions. in the end he concluded:

“[T]he idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections(if that is what Hale meant), is no longer acceptable. It can never have been other than fiction, and fiction is a poor basis for the criminal law. The extent to which events have overtaken Hale’s proposition is well illustrated by his last four words, ‘which she cannot retract.’ it seems to us that 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.[16]

And thus, the appeal was dismissed. The House of Lords agreed that the appeal should be dismissed. Following the decision of the House of Lords the case was taken to the European Court of Human Rights in SW and CR v United Kingdom [17]. The European Court considered whether the decision of the House of Lords amounted to a retrospective change to the law contrary to Article 7 of the European Convention on Human Rights (ECHR). The claim was rejected. Article 7 was seen as designed to ensure there were no arbitrary prosecutions, but that did not prevent development and interpretation of the criminal law by courts, providing any development was clearly defined and foreseeable.

After vehemently scrutinising the above case the fundamental question which arises in the reader’s mind is that why, in the 21st century (2020 to be precise), is the marital exemption to rape still present in India? After the right to privacy(which gives a right to choose) being given the status of a fundamental right is it possible to allow a husband to rape his wife and get away with the shield of marital rape exemption? Is marital rape exemption not prone to scrutiny when the constitutionality of abortion law is being questioned in the apex courts [18]?

The answers are varied yet what is most disturbing is the lack of questioning and macabre silence on the overt sacrifice of female rights to propitiate the god of patriarchy.

[1]R v R [1992] 1 AC 599.

[2]R Pearson, ‘Ruling Ends “250 Years of sexual slavery”’ 23 October 1991, Press Association.

[3]M Hale, History of the Pleas of the Crown, 1st edition (London, Nutt, 1736) vol 1, 629.

[4]H Fenwick, ‘Marital Rights or partial immunity?’ (1992) 142 New Law Journal 831.

[5](1794) 1 Hag Ecc 765n.

[6]J Archbold, Pleading and Evidence in Criminal Cases (1822) 259.

[7]l Ellison and V Munro, ‘Reacting to Rape: Exploring Mock Jurors’ Assessments of

Complainant Credibility’ (2009) 49 British Journal of Criminology 202.

[8]R v Kowalski.

[9]R v Clarke.

[10]R v O’Brien [1974] 3 All ER 663.

[11]R v S (unreported), 15 January 1991.

[12]R v Steele (1976) 65 Cr App R 22.

[13]R v Roberts [1986] Crim lR 188.

[14][1991] 1 All ER 747, 754.

[15]R v Cogan [1976] QB 217;

[16]R v R 611.

[17]Ser A 335-B, 1995.

[18]Swati Agarwal v. Union of India, WP (C) 825/2019.


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