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Concept
R v R
Summary
is a decision in which the House of Lords determined that under English criminal law, it is a crime for a husband to rape his wife.
In 1990, the defendant, referred to in the judgment only as R to protect the identity of the victim, had been convicted of attempting to rape his wife. He appealed the conviction on the grounds of a purported marital rape exemption under common law. R claimed that it was not legally possible for a husband to rape his wife, as the wife had given irrevocable consent to sexual intercourse with her husband through the contract of marriage, which she could not subsequently withdraw.
Both the Court of Appeal and the House of Lords upheld the rape conviction, declaring that a marital rape exemption did not exist in English law and that therefore, it is possible for a husband to rape his wife.
Rape in English law
The impossibility of marital rape under English common law was suggested in Sir Matthew Hale’s Historia Placitorum Coronæ (History of the Pleas of the Crown), published posthumously in 1736, 60 years after his death. In it he stated 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 herself up to her husband, consent which she cannot retract". In other words, by consenting to marriage, a wife had given her body to her husband and also gave irrevocable consent to sexual intercourse with her husband. The first edition of John Frederick Archbold's Pleading and Evidence in Criminal Cases in 1822 reiterated the position that: "A husband also cannot be guilty of a rape upon his wife".
A principle in English law that a husband could not rape his wife had long been supposed in writing to be correct. R v R was the first case in which this exemption reached the House of Lords. As late as the end of the nineteenth century family judges were still prepared to make orders for "restitution of conjugal rights" against estranged wives. However, by that time the statement in Hale had already been doubted by some judges.
Official source
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