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

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

II. Facts:

The defendant (D) was convicted of attempting to rape his wife.
D appealed, arguing that common law precedent exempted husbands from being liable for raping their wives.

III. Issue:

Can a husband be guilty of raping his wife, considering the historical common law position and the existing legal framework (Sexual Offences Act 1956)?

IV. Holding:

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

V. Reasoning:

Evolution of Common Law: Acknowledged the existence of common law precedent stating a husband could not rape his wife because marriage implied irrevocable consent to sexual intercourse. However, the court emphasized that the common law can and must evolve to reflect changing societal values, economic realities, and cultural norms.
Partnership of Equals: Recognized marriage as a partnership of equals, rendering the concept of irrevocable consent by the wife "quite unacceptable" in modern society.
Interpretation of 'Unlawful': The court re-examined the meaning of "unlawful" in Section 1(1) of the Sexual Offences Act 1956, concluding that it no longer rationally meant "outside the bonds of marriage" regarding sexual intercourse.
Redundancy of 'Unlawful': The court determined that the word "unlawful" added nothing substantive to the definition of rape. The core element of rape is sexual intercourse without consent. Therefore, the presence of marriage is irrelevant if consent is absent.

VI. Significance:

Overruling Precedent: R v R effectively overturned the long-standing common law exemption for marital rape.
Modernization of Law: Demonstrated the judiciary's ability to adapt the common law to reflect contemporary social values and ensure justice.
Focus on Consent: Affirmed that consent is the defining element of lawful sexual intercourse, regardless of marital status.

VII. Subsequent Legislation:

Criminal Justice and Public Order Act 1994, s 142: Codified the ruling in R v R by removing the word "unlawful" from the statutory definition of rape, focusing solely on sexual intercourse without consent. This ensured clarity and legal certainty on the matter.

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