H has no right to sexual intercourse with W – rape
The defendant appealed against his conviction for having raped his wife, saying that intercourse with his wife was necessarily lawful, and therefore outside the statutory definition of rape. Due to the matrimonial difficulties, the wife had left their matrimonial house and gone to her parents with the son. When she was there with her parents, the defendant had forced his way in and attempted to have sexual intercourse with her. The assault had taken place during the cause of the said attempt.
Held: The appeal failed. A husband could be prosecuted for raping his wife. In the definition of the offence of rape, the word ‘unlawful’ in describing intercourse no longer added any meaning and should be disregarded.
Lord Keith of Kinkel observed that: ‘husband and wife are now for all practical purposes equal partners in marriage.’ and ‘. . in modern times the supposed marital exemption in rape forms no part of the Law of England’
Lord Keith of Kinkel, Lord Brandon Of Oakbrook, Lord Griffiths, Lord Ackner And Lord Lowry
[1991] 4 All ER 481, [1992] 1 AC 599, [1990] UKHL 9, [1991] UKHL 12, [1991] UKHL 14, (1992) 94 Cr App R 216, (1991) 155 JPN 752, [1992] 1 FLR 217, [1991] 3 WLR 767, (1991) 155 JP 989, [1992] Crim LR 207, [1992] Fam Law 108
Hamlyn, Bailii, Bailii, Bailii
Sexual Offences (Amendment) Act 1976 1(1)
England and Wales
Citing:
Followed – S v HM Advocate HCJ 1989
Rape is regarded as an aggravated assault, of which the achievement of sexual intercourse is the worst aggravating feature. . .
Clarified – Regina v Clarence CCCR 20-Nov-1888
The defendant knew that he had gonorrhea. He had intercourse with his wife, and infected her. She would not have consented had she known. He appealed his convictions for assault and causing grievous bodily harm.
Held: ‘The question in this . .
Appeal from – Regina v R CACD 14-Mar-1991
The appellant challenged his conviction for charges of attempted rape and assault occasioning actual bodily harm on his then wife to which he had pleaded guilty after the trial judge ruled that he could be convicted of rape on his wife.
Held: . .
Cited – Regina v C (rape: marital exemption), Crwn 1991
(Crown Ct at Sheffield) There were nine counts in an indictment against a husband and a co-accused charging various offences of a sexual nature against an estranged wife. One of these was of rape as a principal.
Held: The whole concept of a . .
Cited – Regina v J (rape: marital exemption) Crwn 1991
(Crown Ct at Teesside) A husband was charged with having raped his wife, from whom he was living apart at the time.
Held: The charge was bad. s 1(1)(a) of the 1976 Act had the effect that the marital exemption embodied in Hale’s proposition . .
Cited – Regina v Chapman CCA 1958
The court accepted that the word `unlawfully’ in relation to carnal knowledge had in many early statutes not been used with any degree of precision, and he referred to a number of enactments making it a felony unlawfully and carnally to know any . .
Cited – Regina v Jackson CA 1891
A husband had no right to confine his wife in order to enforce a decree for restitution of conjugal rights. . .
Cited – Rex v Clarke 1949
The defendant was accused of the rape of his wife and assault. At the time they were separated by virtue of a court order recently obtained by her. He replied that the offence alleged was not known to law because of the marriage.
Held: The . .
Cited – Regina v Miller Assz 1954
A husband was charged with rape of his wife after she had left him and petitioned for divorce. He was also charged with an assault.
Held: There was no evidence which entitled the court to say that the wife’s implied consent to marital . .
Cited – Regina v O’Brien Crwn 1974
(Crown Court, Bristol) A decree nisi effectively terminated a marriage and revoked the wife’s implied consent to marital intercourse, so that subsequent intercourse by the husband without her consent constituted rape. . .
Cited – Regina v Steele CACD 1976
The parties to the marriage were living apart, and the wife had taken the husband to court for domestic violence, and the court had accepted his undertaking not further to molest her. He later had intercourse with her and appealed against his . .
Cited – Regina v Caswell Crwn 1984
Crown Court at Wakefield . .
Cited – Regina v Sharples Crwn 1990
(Crown Court at Manchester) The defendant could not be convicted of rape upon his wife despite there being a family protection order in her favour and he had had sexual intercourse with her against her will. . .
Cited – Regina v Kowalski CACD 1987
. .
Cited – Regina v Roberts CACD 1986
The parties to the marriage were living separately under a deed of separation. The husband appealed a conviction for rape.
Held: The deed was enough to establish that the husband could not rely upon any implied consent by his wife as a . .
Cited – HM Advocate v Paxton HCJ 1984
. .
Cited by:
Cited – Regina v Crooks CACD 18-Mar-2004
The defendant appealed against a conviction in 2002 for the rape of his wife in 1970. He said that at the time that was not an offence.
Held: The words which at one point appeared to make rape of a wife lawful were a mere technicality. The . .
Cited – SW v The United Kingdom; CR v United Kingdom ECHR 22-Nov-1995
Criminal Law Change not retrospective
The law that marital rape was an offence, was not to be treated as retrospective despite being a common law change. The Court rejected complaints by two applicants who had been found guilty of raping their wives which was an undoubted extension of . .
Appealed to – Regina v R CACD 14-Mar-1991
The appellant challenged his conviction for charges of attempted rape and assault occasioning actual bodily harm on his then wife to which he had pleaded guilty after the trial judge ruled that he could be convicted of rape on his wife.
Held: . .
Cited – Regina v Dica CACD 5-May-2004
Reckless HIV transmission – Grievous Bodily Harm
The defendant appealed against his conviction for inflicting grievous bodily harm. He had HIV/Aids, and was found to have transmitted the disease by intercourse when the victims were not informed of his condition. It was not suggested that any rape . .
Mentioned – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Lists of cited by and citing cases may be incomplete.
Crime, Family
Leading Case
Updated: 11 November 2021; Ref: scu.194880
