NICOLE STOCKTON
It has been over 30 years since the 1991 House of Lords landmark ruling in R v R that stated the marital exception no longer stood and a husband was criminally liable for raping his wife. The rule that was previously upheld was Hale’s view that ‘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’. It is easy to look back with hindsight today and ask why something which seems so obviously wrong to us now, took until 1991 for this ruling but there were a number of socio-legal influences that culminated in 1991. This blog will address each of these in turn as well as the question of, if there was pressure for reform for at least 20 years, why did it take until 1991 for the judiciary to make the decision in R v R?
The R v R Case
In the case of R v R, the defendant and his wife had been married for five years when she left to live with her parents and intended to file for divorce. The defendant broke into the house, attempted to have sexual intercourse with his wife and put his hands around her neck, assaulting her. He was charged with rape and assault and appealed saying that section 1(1) of the Sexual Offences (Amendment) Act 1976 did not acknowledge marital rape as unlawful. Therefore, the issue the court addressed was whether the inclusion of the word ‘unlawful’ in the ad hoc section should include marital rape and had been construed over time through case law. This case was monumental as it not only stated that this was not the Parliament’s intention but also because it highlighted the impact of socio-legal influences at the time.
A key influence was the 20 years’ work of the feminist movement prior to this decision. Grassroots organisations like Women Against Rape (WAR), founded in 1976, were instrumental as they publicly criticised the view that marital rape was not rape with slogans such as ‘rape, like charity, begins at home’. As Williams acknowledged, the frustration from feminists was that if marital rape was taken more seriously earlier, it would have conveyed a strong message that all rape is to be taken seriously, giving women more confidence to come forward. Initially, the feminist movement had to influence society as women needed to realise that marital rape was a crime that should be reported. The impact of the feminist movement on reporting was evident as it increased from 2,417 cases in 1987 to 4,589 in 1993. However, the conviction rates were so low, declining from 19-11% from 1987 to 1993, so the real change for women could only happen once law and politics embraced the feminist movement.
“The real change for women could only happen once law and politics embraced the feminist movement.”
Nicole Stockton, LLB Graduate from Newcastle Law School
The Feminist Movement Influence
The feminist movement started affecting politics in 1989 as the campaigning went public rather than to government. As the ‘World in Action’ programme and ‘The right to rape’ presented an academic survey, results showed that 14% of married women had been raped and 96% of women wanted the law changed. WAR also started working alongside the Law Commission sending proposals for reform which eventually led to the 1990 Law Commission Working Paper. The paper called for the extension of the Sexual Offences Act 1976 to include marital rape. Further to this, there was also an increase in Parliamentary Debate around marital rape as Labour MP John Tilley had worked with WAR since 1983. Tilley gave a speech to Parliament stating that the role of the criminal law is to ‘list the actions and activities that society finds so abhorrent that the perpetuators deserve punishment’, marital rape being one of these. This gives some context as to why it took until 1991 for the growing tension to not only build in society but also in law and politics to make the judges in R v R feel they were not overstepping by making this ruling when they did.
The effect of the feminist movement’s work was seen particularly in the Court of Appeal judgement of R v R as Lord Lane CJ went from stating in 1977 that ‘as a general principle, there is no doubt that a husband cannot be guilty of rape upon his wife’ to stating in this judgement that ‘the law should declare that a rapist remains a rapist…irrespective of his relationship with his victim.’ This demonstrates that by 1991 the feminist movement had influenced society and politics enough to shape and influence the law, albeit at a slower rate. The House of Lords judgement also echoed this as it focussed on the word ‘unlawful’ and as Laird observed, the judges were ‘evidencing discomfort with the idea a wife has implicitly consented to intercourse with her husband’. This was because, as the feminist movement proved, wives were far from the portrayed image of being unable to make their own decisions around consent. It is also worth noting that Scotland had made the ruling that marital rape was unlawful in 1989 so there was a pressure to make the same ruling in England and Wales. To this effect, the House of Lords in R v R stated, ‘the substance of that reasoning to be no less valid in England than in Scotland’. This contextualises why by 1991 there were both legal and political pressures and discomfort with ignoring this issue which resulted in this ruling.
The feminist movement, evidently, was a long-term catalyst to the ruling in R v R as it gave women confidence to come forward and acknowledge what had happened prior to the House of Lords decision. The reason it took until 1991 for it to be recognised was that society needed to shift in line with the feminist movement, infiltrating politics and law, so that judges became increasingly uncomfortable with the issue which inevitably forced them to make a definitive ruling in 1991 rather than wait for political clarification.