R v R

R married his wife in 1985; however, the marriage became strained. In 1989, at the wife's parents' house, while her parents were out, R broke in and attempted to force her to have sexual intercourse with him against her will while also strangling her. The police arrested R and charged him with attempted rape and assault occasioning actual bodily harm. The jury at Leicester Crown Court found him guilty on both counts. R appealed the case with regards to his attempted rape conviction to the House of Lords based on the exemption of marital rape.^[1][2]

The exemption of marital rape came about in English common law from Sir Matthew Hale's History of the Pleas of the Crown where he declared "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".^[3][4] This was held as a binding precedent up until R v R, and it was distinguished in R v Kowalski^[5] that the marital defence only applied to the crime of rape (which was then defined as vaginal sex only) and not to acts such as fellatio.^[6]

Lord Keith of Kinkel gave the per curiam decision. In it, he considered a previous case in Scottish law where in S. v. H.M. Advocate^[2][7] it was held that there was no marital rape exemption in Scottish law, even if the married couple was cohabiting. In that case, Lord Emslie questioned if the exemption was an accurate representation of life in modern Scotland. Lord Keith stated in the judgement that there was no reason why this couldn't apply in English law. He stated that following the Matrimonial Causes Acts, the definition of marriage had moved from Hale's time from where the wife was subservient to her husband into a contract of equals.^[1][8]

The House of Lords also considered the Sexual Offences (Amendment) Act 1976 if the word "unlawful" in the definition of unlawful rape included marital rape. The court determined that it did as the word unlawful was surplusage as all rape was considered illegal under the act. With regard to the marital rape exemption, Lord Keith declared that marital rape exemption was a "common law fiction" and ruled "...in modern times the supposed marital exemption in rape forms no part of the law of England."^[1][9] Lord Brandon of Oakbrook, Lord Griffiths, Lord Ackner and Lord Lowry all unanimously agreed with Lord Keith's ratio decidendi. As such R's appeal was dismissed and his conviction upheld.^[2]

The case was reviewed by the European Court of Human Rights under article 7 of the European Convention on Human Rights in SW and CR v UK on the grounds that because the law was wrong, then SW and CR argued they had been punished without breaking any law in a violation of article 7. However the European Court rejected this appeal on the grounds that R v R was a natural forseeable evolution of law and that even if the common law marital rape exemption existed or their victims not been their wives, then the appellants would still have been guilty of rape under the Sexual Offences (Amendment) Act 1976.^[10][11]

The judgement in R v R was supported by the Law Commission and was later confirmed in statute law by an amendment to the Sexual Offences Act in the Criminal Justice and Public Order Act 1994.^[12]