KembaraXtra-Case Law-R v R (1991) HL

KembaraXtra-Case Law-R v R (1991) HL
I. Case Overview:

II. Facts:

The defendant (D) was convicted of attempting to rape his wife.
D appealed, arguing that common law precedent established a husband's immunity from being found guilty of raping his wife.

III. Issue:

Can a husband be held liable for raping his wife, considering the historical common law position?

IV. Holding:

The House of Lords dismissed the appeal, affirming that a husband can be guilty of raping his wife.

V. Reasoning:

Evolution of Common Law:
- Acknowledged the existence of precedent stating that sexual intercourse between husband and wife was not unlawful.
- Emphasized that "the common law is capable of evolving in the light of changing social, economic and cultural developments" (Lord Keith).
Changing Societal Norms:
- Marriage is now viewed as a partnership of equals.
- The idea that a wife irrevocably consents to sexual intercourse upon marriage is "quite unacceptable" in modern society.
Interpretation of Sexual Offences Act 1956, s 1(1):
- Historically, "unlawful" in the definition of rape was interpreted as "outside the bounds of marriage."
- The court found that this interpretation was no longer rational or justifiable.
- The word "unlawful" adds nothing to the definition of rape.
- Therefore, there is nothing to prevent a husband being liable for raping his wife.

VI. Significance & Impact:

Abolished Marital Rape Immunity: Landmark case effectively abolished the common law immunity of a husband from being prosecuted for raping his wife.
Codification: The judgment was effectively codified in s 142 of the Criminal Justice and Public Order Act 1994. This section removes the word "unlawful" from the definition of rape and refers instead to sexual intercourse without consent. This provides statutory support for the House of Lord's ruling.

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