Working paper on sexual offences / Home Office, Criminal Law Revision Committee.

  • Great Britain. Criminal Law Revision Committee
Date:
1980
Catalogue details

Licence: Open Government Licence

Credit: Working paper on sexual offences / Home Office, Criminal Law Revision Committee. Source: Wellcome Collection.

    18/72 (page 12)
    of rape by a husband on his wife would be specifically drawn to our attention.! We have considered this question. We find ourselves divided about both the need and the desirability of change; but a majority of us favour change. 29. The present law, which is part of the common law, has an archaic flavour to it. It is generally taken to be as stated by Hale in his Pleas of the Crown, which he wrote in the 1650's. “The husband cannot be guilty of 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.’’? The critics of this law point out that since Hale’s time wives can retract this consent. They can get divorces and separation orders. The courts have had to recognise in relation to rape modern changes in attitude towards marriage. Thus in Miller [1954] 2 Q.B. 282 it was held that, though the husband had a right to sexual intercourse, he was not entitled to use force or violence in order to exercise that right: “If he does so, he may make himself liable to the criminal law, not for the offence of rape, but for whatever other offence the facts of the particular case warrant. If he should wound her, he might be charged with wounding or caus- ing bodily harm, or he may be liable to be convicted of common assault” (per Lynskey J. at 292). 30. A husband can be guilty of rape if a decree nisi has been granted (O’Brien [1974] 3 All E.R. 663), or if an injunction has been granted to restrain him from molesting his wife or he has given an undertaking to the court not to do so (Steele (1977) 65 Cr. App. Rep. 22) or if the court has granted a separation order (Clarke [1949] 2 All E.R. 448). But a husband, it seems, can still force his wife to have sexual intercourse with him without being guilty of rape even if she has left him, provided he does so before she gets a protective order from a court. The most glaring anomaly of all, say the critics, is that a woman who 1s cohabiting with a man—and maybe she has done so for many years—can refuse him sexual intercourse and her refusal, if it can be proved, will come within the law of rape, whereas a wife’s will not. Cohabitation outside marriage is becoming increasingly common and this adds to the anomaly of drawing the distinction as it is now drawn. Stated at its simplest, the criticism is that the present rule denies married women some- thing to which all other women are entitled. 31. We are all agreed that the present law may sometimes lead to a failure of justice. For example, it is not uncommon for a wife to be living apart from her husband without a court order. If the husband breaks into her house and forces her to have sexual intercourse with him it is hard to see why it should not be possible to charge him with rape. Again, where a wife refuses her husband sexual intercourse because he has a venereal disease, we think it right that he should be liable to be charged with rape if he forces her to have intercourse 1911 H.C. Official Report (Sth series) 1976, Col. 1957-58. 21 P.C. 629.