[This page is updated by Dr Peter Jepson.]
For a long time, the requirement of sexual intercourse to be ëunlawfulí in rape was understood to mean that intercourse took place outside marriage. This meant that a husband who had sex with his wife without her consent could not be guilty of rape (although he could be guilty of some lesser offence such as indecent assault or simply assault). This idea dated back to the times when, on giving her consent to be married, a woman automatically gave her consent to sexual intercourse for the rest of the marriage. This consent could not be withdrawn since the wife was the ëpropertyí of her husband. Not surprisingly, as attitudes to women and the marriage relationship changed, the law concerning rape within marriage was increasingly criticized, but it was not until 1991 that it was finally altered in the case of R v R (1991).
The D went to the home of his estranged wife and forced her to submit to sexual intercourse. The House of Lords, following the decision of the Court of Appeal in
R v Kowalski (1988), took the opportunity to abolish the marital rape exemption rule, thus ensuring that a man could be liable as a principal offender in the rape of his wife.Many thought that the Lords had overstepped the mark as it was felt that it was the job of the legislature (Parliament/government) to create new law ñ not the judiciary!
See also
R v Kowalski (1988).
This case is generally recognised as the forerunner to the dramatic change in the law that arose out of
R v R (1991).The D had gone to his estranged wifeís house and forced her to submit to fellatio (an act of oral sex). The Court of Appeal held that a wifeís implied consent to sexual intercourse with her husband on marriage, did not extend to other sexual practices. In other words, although a husband did not need his wifeís consent for actual sexual intercourse, he DID need her consent for all other sexual acts that were not intercourse per vaginum (vaginal intercourse). Without that consent, the husband could be convicted of indecent assault. The case also confirmed that it is irrelevant whether the acts in question are preliminary to sexual intercourse and whether they had previously been consented to.
This principle was then extended to include the act of sexual intercourse by the House of Lords in
R v R (1991), thus ending overnight, the centuries old marital rape exemption rule.
This case made it clear that duress was not available as a defence to any of the parties to an offence of murder. The D had fallen under the evil influence of a man called Murray and, as a result, had assaulted one person (who had then been killed by another), and then actually killed a man on Murrayís orders. The House of Lords ruled that that the defence of duress was not available to D as either the principal offender in one murder, or as the secondary party to the other murder. In their judgment, the Lords also stated obiter that duress should not be available to someone who had been charged with attempted murder. This was later followed in
R v Gotts (1992).
The D, aged 16, seriously injured his mother with a knife. He tried to argue in his defence that he was acting under duress because his father had threatened to shoot him unless he killed his mother, but the defence was rejected by the Court of Appeal, who followed the obiter statement made by the Lords in
R v Howe (1987) as persuasive precedent.